Exhibit 10y
November 30, 2000
Xx. Xxxxx X. Xxxxx
Re: Employment Letter Agreement
Dear Xxxxx:
Based on the events as they have transpired subsequent to the execution of the
Agreement and Plan of Merger dated as of August 18, 2000, among the Company,
Anchor Merger Sub, Inc. and PepsiAmericas, Inc. (the "Merger Agreement"), the
Company desires that you assist in providing a smooth transition following the
merger of PepsiAmericas, Inc. into a subsidiary of Xxxxxxx Corporation (the
"Merger") by continuing your employment, and you have expressed a desire to
continue your employment with the Company, all on the following terms and
conditions:
1. The Company acknowledges that the PepsiCo transaction, which took place on
May 20, 1999, constituted a "Change in Control" as defined in the Change in
Control Agreement dated January 15, 1998 ("Agreement") and that events
which have transpired in connection with the Merger have constituted "Good
Reason," entitling you to terminate your employment with the Company and
receive the severance compensation provided in Section 4(b) of the
Agreement. Because the Company and you have agreed to extend your
employment through January 15, 2001 on an interim basis pursuant to a
Letter Agreement dated as of the date hereof (the "Letter Agreement") to
facilitate a smooth transition following the Merger, and because the
Company and you have agreed to extend your employment beyond January 15,
2001 on a trial basis pursuant to this Employment Letter Agreement, the
Company and you hereby agree to terminate the Agreement and any amendments
thereto or any other agreements or understandings with respect to benefits
to be afforded to you in the event of your termination of employment with
the Company.
2. The Company and you agree that Your employment as President and Chief
Operating Officer--International of the Company shall continue from and
after January 15, 2001 without any break in service, and your compensation
and all benefits shall remain at levels not less than you currently
receive, it being understood that the Company may change its compensation
or benefits practices at any time, without notice, provided that your
compensation and benefits, respectively, remain at levels not less, in the
aggregate, than those currently in effect for you.
3. Either the Company or you may terminate your employment at any time, for
any reason. Your employment pursuant to this Agreement will be entirely "at
will", and nothing contained herein shall be construed as implying or
granting any right to continued employment.
4. If either you or the Company should terminate your employment for any
reason on or before December 31, 2002, you will immediately receive (not
later than the 10th day following the date of termination) a payment in the
gross amount of $1,637,270.30 subject to all applicable withholding and
other taxes. Commencing on the effective date of your termination on or
before December 31, 2002, the Company shall provide, at its expense, for a
period of thirty-six months from your date of termination or until your
death, whichever occurs first, all life, medical, dental and accident
insurance that you have in effect immediately prior to your date of
termination, and the Company will reimburse you for one-time assessments
from your club memberships (collectively, the "Extended Employment
Benefits"). The Company will also pay the normal and customary fee for an
executive outplacement program selected by you. Any non-cash benefits
provided to you which result in taxable income shall be fully grossed-up in
accordance with the Company's past practices. If your employment with the
Company continues beyond December 31, 2002, you will forego - and you
hereby relinquish - any and all rights to the $1,637,270.30 cash payment
referred to above and any rights to Extended Employment Benefits.
In consideration of the cash payment of $1,637,270.30 in the event of your
termination of employment for any reason on or before December 31, 2002,
you hereby agree that for a period of twelve months from the effective date
of such termination you will not engage in any activities whether as
employer, proprietor, partner, equity holder (other than a holder of less
than 5% of the stock of a corporation the securities of which are traded on
a national securities exchange or quoted on NASDAQ), director, officer,
employee, consultant, agent or otherwise, in competition with the
carbonated soft drink business of the Company in any geographical territory
in which the Company is then doing business.
5. Upon your termination of employment for any reason on or prior to December
31, 2002, (i) any shares of Xxxxxxx common stock or restricted cash which
remain in a restricted status shall be fully vested and delivered to you
forthwith and (ii) all Xxxxxxx stock options then held by you shall be
exercisable in full, and to the extent not previously exercised, each such
option shall remain exercisable for the remainder of the original term of
the option. Upon your termination of employment on or after January 1,
2003, your rights to Company common stock or restricted cash held in
restricted accounts and stock options held by you shall be governed by the
applicable plan or agreement relating to such benefits.
6. During your employment with the Company all benefits under any defined
benefit pension or retirement plans, employee pension or retirement plan or
any other plan or agreement relating to retirement benefits (collectively,
"Defined Benefit Retirement Plans") in which you currently participate
shall continue to accrue uninterrupted. Upon your termination of employment
for any reason on or prior to December 31, 2002, your Defined Benefit
Retirement Plans will continue to accrue for a period of 36 months
following the date of termination of your employment, and no contribution
will be required to be made by you under any such plan or agreement
relating to Defined Benefit Retirement Plans following the date of your
termination of employment. To the extent that the amount of any Defined
Benefit Retirement Plans are or would be payable from a nonqualified plan,
the Company shall, as soon as practicable following the date of termination
(but in no event later that the 30th day after the date of termination),
pay directly to you in one lump sum, cash in an amount equal to the total
benefits that would have been provided had such accrual or crediting been
taken into account in calculating such Defined Benefit Retirement Plans.
Such lump sum payment shall be calculated as provided in the relevant plan
and in accordance with past actuarial calculations. Upon your termination
of employment on or after January 1, 2003, your rights to any Defined
Benefit Retirement Plans shall be governed by the applicable plan or
agreement relating to such benefits.
7. In the event of your death on or prior to December 31, 2002, while you are
still employed by the Company, the cash payment provided for in paragraph 4
hereof, Extended Employment Benefits payable under paragraph 4 hereof (to
the extent applicable to your surviving family members covered by such
benefits), and the Defined Benefit Retirement Plans benefits payable to you
under paragraph 6 hereof, shall be paid to your executors, heirs or
personal representatives, and your executors, heirs or personal
representatives shall have the right to all restricted stock and restricted
cash, and the right to exercise stock options as set forth in paragraph 5
hereof.
8. In the event the compensation payable under this Employment Letter
Agreement, either alone or together with any other payments to you from the
Company or a Subsidiary (including, but not limited to, payments under the
Company's Stock Incentive Plan or any agreement or award issued pursuant to
such Plan or any successor plan), would constitute a "parachute payment"
(as defined in Section 280G of the Internal Revenue Code, as amended, or
any successor provision), and subject you to the excise tax imposed by
Section 4999 of the Internal Revenue Code, as amended, or any successor
provision, the Company shall pay to you, as additional compensation
hereunder and at the same time or times as such compensation, but in no
event later than the payment date for such tax or taxes, the amount of such
excise tax and any additional taxes payable by you by reason of such
payment (on the basis of a customary "gross-up" formula), as calculated by
the Company. The Company agrees to indemnify and hold you harmless from and
against any liability for the payment of additional taxes arising from any
deficiency in the amount of such excise tax and any additional taxes
thereon so calculated by the Company, together with any interest or
penalties applicable thereto; provided, however, that it shall be a
condition of this obligation to indemnify and hold harmless that you shall
have timely notified the Company of any proposed assessment relating to any
claimed deficiency therein and offered the Company the right to contest
such assessment or participate in, at the expense of the Company, any
proceeding relating thereto.
9. This Employment Letter Agreement is in partial satisfaction of the
respective rights and obligations of the parties to the Agreement between
Xxxxxxx Corporation and Pepsi-Cola General Bottlers, Inc. (collectively
"the Company") and you and, together with the Letter Agreement of today's
date between you and the Company, represents a complete accord and
satisfaction of the respective rights and obligations of the parties to the
Agreement. You also represent that you have no other rights to retirement
or severance benefits under any other agreements, plans, policies or
understandings between you and the Company or under any policies available
to any employees of the Company.
This Employment Letter Agreement shall become effective upon execution. If you
are in agreement with the foregoing, please sign both copies hereof in the space
provided below and return one copy to Xxxxxxx.
Very truly yours,
XXXXXXX CORPORATION
/s/ Xxxxxx X. Xxxxxx
--------------------------
ACCEPTED AND AGREED:
/s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
November 30, 2000
Xx. Xxxxx X. Xxxxx
Re: Letter Agreement
Dear Xxxxx:
Based on the events as they have transpired subsequent to the execution of the
Agreement and Plan of Merger dated as of August 18, 2000, among the Company,
Anchor Merger Sub, Inc. and PepsiAmericas, Inc. (the "Merger Agreement"), the
Company desires that you assist in providing a smooth transition following the
merger of PepsiAmericas, Inc. into a subsidiary of Xxxxxxx Corporation (the
"Merger") by continuing your employment, and you have expressed a desire to
continue your employment with the Company, all on the following terms and
conditions:
1. The Company acknowledges that the PepsiCo transaction, which took place on
May 20, 1999, constituted a "Change in Control" as defined in the Change in
Control Agreement dated January 15, 1998 ("Agreement") and that events
which have transpired in connection with the Merger have constituted "Good
Reason," entitling you to terminate your employment with the Company and
receive the severance compensation provided in Section 4(b) of the
Agreement. Because the Company and you have agreed to extend your
employment through January 15, 2001 to facilitate a smooth transition
following the Merger, and because the Company and you have agreed to extend
your employment beyond January 15, 2001 on a trial basis pursuant to a
separate Employment Letter Agreement (the "Employment Letter Agreement")
dated as of the same date as this Letter Agreement, the Company and you
hereby agree to terminate the Agreement and any amendments thereto or any
other agreements or understandings with respect to benefits to be afforded
to you in the event of your termination of employment with the Company.
2. The Company and you agree that your employment as President and Chief
Operating Officer--International of the Company will continue through
January 15, 2001 at not less than your current compensation level and with
a level of benefits which, in the aggregate, are not less than your current
level, so that you may assist in the short-term transition following the
Merger. In consideration of your agreement to remain employed through the
initial transition period ending on January 15, 2001, and in consideration
of the Company's agreement to continue your employment pursuant to this
Agreement and the Employment Letter Agreement, the parties agree that on
January 15, 2001 you will receive a payment in the gross amount of
$1,637,270.30, which will be subject to all applicable withholding and
other taxes. Your right to receive the cash payment set forth above may not
be terminated by the Company for any reason other than your voluntary
resignation of employment prior to January 15, 2001.
3. This Letter Agreement is in partial satisfaction of the respective rights
and obligations of the parties to the Agreement between Xxxxxxx Corporation
and Pepsi-Cola General Bottlers, Inc. (collectively "the Company") and you
and, together with the Employment Letter Agreement between the Company and
you, represents a complete accord and satisfaction of the respective rights
and obligations of the parties to the Agreement.
4. In the event the compensation payable under this Letter Agreement, either
alone or together with any other payments to you from the Company or a
Subsidiary (including, but not limited to, payments under the Company's
Stock Incentive Plan or any agreement or award issued pursuant to such Plan
or any successor plan), would constitute a "parachute payment" (as defined
in Section 280G of the Internal Revenue Code, as amended, or any successor
provision), and subject you to the excise tax imposed by Section 4999 of
the Internal Revenue Code, as amended, or any successor provision, the
Company shall pay to you, as additional compensation hereunder and at the
same time or times as such compensation, but in no event later than the
payment date for such tax or taxes, the amount of such excise tax and any
additional taxes payable by you by reason of such payment (on the basis of
a customary "gross-up" formula), as calculated by the Company. The Company
agrees to indemnify and hold you harmless from and against any liability
for the payment of additional taxes arising from any deficiency in the
amount of such excise tax and any additional taxes thereon so calculated by
the Company, together with any interest or penalties applicable thereto;
provided, however, that it shall be a condition of this obligation to
indemnify and hold harmless that you shall have timely notified the Company
of any proposed assessment relating to any claimed deficiency therein and
offered the Company the right to contest such assessment or participate in,
at the expense of the Company, any proceeding relating thereto.
This Letter Agreement shall become effective upon execution. If you are in
agreement with the foregoing, please sign both copies hereof in the space
provided below and return one copy to Xxxxxxx.
Very truly yours,
XXXXXXX CORPORATION
/s/ Xxxxxx X. Xxxxxx
--------------------------
ACCEPTED AND AGREED:
/s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
