Exhibit 10.21
SEVERANCE AND CHANGE OF CONTROL AGREEMENT
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THIS AGREEMENT is made as of January 29, 2001 by and between Packaging
Holdings, L.L.C. ("Packaging Holdings"), Packaging Dynamics, L.L.C. ("Packaging
Dynamics" and together with Packaging Holdings, collectively, the "Company") and
Xxxx Xxxxxx (the "Executive").
The parties hereto, intending to be legally bound hereby, agree as follows:
1. Position and Compensation. The Executive currently is serving as
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President and Chief Executive Officer of the Company and is receiving the
following compensation (the "Compensation") for his services: (a) the base
salary in effect on the date hereof (which amount may be increased as the
Company may determine and such increased rate of base salary shall thereafter
constitute the Executive's base salary for all purposes of this Agreement), (b)
an annual performance bonus under the Company's Senior Management Incentive
Compensation Plan equal to the percentage (in effect on the date hereof) of the
Executive's base salary, and (c) participation in all of the Company's employee
benefits plans, including without limitation, retirement and pension plans,
incentive compensation plans (including the 2001 Packaging Holdings, L.L.C.
Long-term Incentive Compensation Plan), life insurance plans, dental plans,
medical plans and automobile allowance plans which are, from time to time, made
available by the Company to its executive officers, subject to the terms of such
plans, with the Executive's participation to be on terms no less favorable to
the Executive than the terms provided to other similar executives.
2. Compensation Upon Termination. The Executive shall be entitled to the
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following Compensation from the Company upon termination of employment:
(a) Termination for "Cause" or without "Good Reason". In the event of
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a termination of the Executive's employment by the Company for "Cause" or by the
Executive without "Good Reason", the Executive shall be entitled to receive the
Compensation specified in Section 1 through the date of termination plus any
unpaid performance bonus for any prior fiscal year.
(b) Upon Termination "Without Cause" or for "Good Reason". In the
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event that the Executive's employment is terminated by the Company "Without
Cause" or by the Executive for "Good Reason", then the Executive shall be
entitled to receive:
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(i) Compensation due the Executive through the date of termination
(including, without limitation, any unpaid performance bonus for the prior
fiscal year);
(ii) a lump sum payable on the date of termination equal to one (1)
times the sum of the Executive's base salary and target bonus, each as in effect
immediately prior to the date of termination (or, if higher, in effect
immediately prior to the first occurrence or circumstance constituting Good
Reason);
(iii) the continuation for the Executive and his dependents of the
medical and dental benefits described in Section 1(c) or the provision of
equivalent benefits until the earlier of (x) the first anniversary of the date
of termination or (y) with respect to the medical benefits, the date upon which
the Executive begins to be covered by medical insurance with a new employer;
provided, that the Executive's medical coverage with the Company shall be
discontinued upon subsequent employment only to the extent that any pre-existing
medical conditions are covered under the new employer's medical plan (for
purposes of determining the period of continuation coverage to which the
Executive or any of his dependents is entitled pursuant to Section 4980B of the
Code (or any successor provision thereto) under any group health plan maintained
by the Company or its Affiliates, the Executive shall be considered to have
remained employed until the first anniversary of his Termination Date);
(iv) if such termination occurs on or after (or within close
proximity of) a Change Of Control, the acceleration of vesting under the
Company's 2001 Long-Term Incentive Compensation Plan; and
(v) if such termination occurs on or after (or within close
proximity of) a Change Of Control, outplacement services for a period of one (1)
year, or, if earlier, until the first acceptance by the Executive of an offer of
employment, in an amount not to exceed $25,000.
3. No Mitigation. The Executive shall not be required to mitigate the
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amount of any payment provided for in this Agreement in connection with or
following termination of employment by seeking other employment or otherwise,
nor shall any amounts provided herein be reduced by any compensation earned by
the Executive as the result of employment by another employer after termination
of the Executive's employment hereunder.
4. Non-Compete Covenants. (a) In consideration of the premises and the
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mutual covenants contained herein, the Executive shall not during the Restricted
Period (as hereinafter defined), in the United States, Canada or any other place
where the Company and its affiliates conduct substantial manufacturing
operations
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relating to the Company's businesses, directly or indirectly (except in the
Executive's capacity as an officer of the Company or any of its affiliates), (i)
engage or participate in any of the Company's principal businesses; (ii) enter
the employ of, or render any other services to, any person engaged in any of the
Company's principal businesses; or (iii) become interested in any such person in
any capacity, including, without limitation, as an individual, partner,
shareholder, lender, officer, director, principal, agent, consultant, advisor or
trustee; provided, however, that the Executive may own, directly or indirectly,
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solely as an investment, securities of any person traded on any national
securities exchange or listed on the National Association of Securities Dealers
Automated Quotation System if the Executive is not a controlling person of, or a
member of a group which controls, such person and the Executive does not,
directly or indirectly, own five percent (5.0%) or more of any class of equity
securities, or securities convertible into or exercisable or exchangeable for
five percent (5.0%) or more of any class of equity securities, of such person.
As used herein, the "Restricted Period" shall mean a period commencing on the
date hereof and terminating upon the first anniversary date of such termination
of employment. The Company and the Executive hereby agree that the non-compete
obligations contained in this Section 4(a) shall supercede and control over any
other similar obligations contained in any other agreements or documents which
such other obligations shall have no force or effect.
(b) The Executive acknowledges that the Company has a legitimate and
continuing proprietary interest in the protection of its confidential
information and that it has invested substantial sums and will continue to
invest substantial sums to develop, maintain and protect such confidential
information. The Executive agrees that during and after the Restricted Period,
the Executive shall keep secret and retain in strictest confidence and shall not
use for the benefit of himself or others all confidential information directly
relating to the Company's businesses learned by the Executive heretofore or
hereafter, unless otherwise in the public domain other than as a result of
disclosure by the Executive or previously known by the Executive or obtained by
the Executive independent of the Company's confidential information.
(c) The Executive acknowledges that all memoranda, notes, lists,
records, engineering drawings, technical specifications and related documents
and other documents or papers (and all copies thereof) relating to the Company,
including such items stored in computer memories, microfiche or by any other
means relating to the Company and its affiliates, made or compiled by or on
behalf of the Executive during his employment or made available to the Executive
relating to the Company, its affiliates or any entity which may hereafter become
an affiliate thereof, shall be the property of the Company and
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shall be delivered to the Company promptly upon the termination of the
Executive's employment with the Company or at any other time upon request.
(d) The Executive agrees that any inventions, discoveries,
improvements, ideas, concepts or original works of authorship relating directly
to the Company's businesses, including without limitation, computer apparatus,
programs and manufacturing techniques, whether or not protectable by patent or
copyright, that have been originated, developed or reduced to practice by the
Executive alone or jointly with others during the Executive's employment with
the Company shall be the property of and belong exclusively to the Company. The
Executive shall promptly and fully disclose to the Company the origination or
development by the Executive of any such material and shall provide the Company
with any information that it may reasonably request about such material.
(e) During the Restricted Period, the Executive shall not, directly or
indirectly, (i) hire or solicit, or cause others to hire or solicit, for
employment by any person other than the Company, or retain as a consultant,
advisor, agent, representative or in any other capacity whatsoever, or cause
others to do any of the foregoing, any person employed by the Company or its
affiliates or successors within the two (2) years preceding the Executive's
hiring or retention of such person or solicitation of such person, or (ii)
encourage any such employee to leave his employment.
(f) During the Restricted Period, the Executive shall not, except by
reason of and in his capacity as an officer of the Company, directly or
indirectly request or advise a customer of the Company or its subsidiaries to
curtail or cancel such customer's business relationship with the Company.
(g) If the Executive breaches, or threatens to commit a breach of, any
of the provisions contained in this Section (the "Restrictive Covenants"), the
Company shall have the following rights and remedies, each of which rights and
remedies shall be independent of the others and severally enforceable, and each
of which is in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity:
(i) the right and remedy to have the Restrictive Covenants
specifically enforced by any court of competent jurisdiction, it being agreed
that any breach or threatened breach of the Restrictive Covenants would cause
irreparable injury to the Company and that money damages would not provide an
adequate remedy to the Company; and
(ii) the right and remedy to require the Executive to account for
and pay over to the Company all compensation,
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profits, monies, accruals, increments or other benefits derived or received by
the Executive as the result of any action constituting a breach of the
Restrictive Covenants.
5. Miscellaneous.
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(a) Definitions. For purposes of this Agreement, the terms "Cause",
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"Without Cause", "Good Reason", "Change Of Control" and "Disability" shall have
the meaning set forth in Exhibit A attached hereto.
(b) Certain Additional Payments by the Company. The Company hereby
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agrees to the terms and conditions of Exhibit B attached hereto.
(c) Successors; Binding Agreement. In the event of any merger,
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consolidation or transfer of assets, the provision of this Agreement shall bind
and inure to the benefit of the surviving or resulting corporation, or the
corporation to which such assets have been transferred, as the case may be. The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, by written agreement, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. The Company's failure to obtain such agreement prior to the effectiveness
of any such succession shall entitle the Executive to terminate his employment
hereunder for Good Reason.
(d) Attorney's Fees. All reasonable legal fees and costs incurred by
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the Executive in connection with the resolution of any dispute or controversy
under or in connection with this Agreement shall be reimbursed by the Company
promptly upon the Executive's incurrence thereof plus interest at ten percent
(10.0%) per annum from the date of any such incurrence; provided, however, that
the Company shall not be obligated to make such payment where the dispute or
controversy is finally determined in favor of the Company. Also, until paid, all
past due amounts required to be paid by the Company hereunder shall bear
interest at a rate of ten percent (10.0%) per annum.
(e) Governing Law. This Agreement shall be governed, construed,
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interpreted, and enforced in accordance with the substantive laws of the State
of Illinois.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PACKAGING HOLDINGS, L.L.C.
PACKAGING DYNAMICS, L.L.C.
By:/s/ Xxxxx X. Xxxxxxx
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/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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Exhibit A
to
Severance and Change Of Control Agreement
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The term "Cause" shall mean and include (a) chronic alcoholism or drug
addition, (b) deliberate misappropriation of any material amount of money or
other assets or properties of the Company or any affiliate or successor thereof,
(c) except where the nonperformance is caused by the illness or other similar
incapacity or disability of the Executive, gross and continuing neglect in the
substantial performance of duties reasonably assigned to the Executive that is
not corrected promptly upon receipt by the Executive of written notice delivered
at the direction of the Company specifically identifying the manner in which it
is alleged that the Executive has not substantially performed his duties, (d)
any willful and material breach of any of the terms of this Agreement except
where the breach is caused by the illness or other similar incapacity or
disability of the Executive, (e) conviction of a misdemeanor involving moral
turpitude or conviction of a felony, (f) death of the Executive, or (g) a
permanent disability of the Executive that entitles the Executive to receive
benefits under the Company's disability insurance program ("Disability").
The term "Without Cause" shall mean termination by the Company for any
reason other than "Cause".
The term "Good Reason" shall mean the continuation of any of the
following (without the Executive's express prior written consent) after written
notice provided by the Executive and the failure by the Company to remedy such
event or condition within thirty (30) days after receipt of such notice:
(a) A reduction in the Executive's base salary, as in effect pursuant
to Section 1(a);
(b) A reduction of or failure by the Company to pay to the Executive
any bonus which is payable pursuant to Section 1(b);
(c) A failure by the Company to provide, on terms no less favorable to
the Executive than the terms offered to other senior executives of the Company,
any benefit or compensation plan (including any pension, profit sharing, life
insurance, health, accidental death or dismemberment or disability plan), or any
substantially similar benefit or compensation plan, which has been made
available to such other senior executives; provided, however, that nothing
herein shall be construed to mean that the Company shall be constrained from
amending or eliminating any benefit or compensation plan as such is applied to
the Executive and to other senior executives of the Company;
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(d) The assignment to the Executive of any duties materially
inconsistent with the Executive's current position with the Company or the
material reduction or elimination of any of the Executive's duties which has the
effect of diminishing the Executive's responsibilities or authority;
(e) A change in the Executive's title;
(f) Failure by the Company to obtain, in accordance with Section 5(c),
the written agreement of any successor in interest to the business of the
Company to assume and perform the obligations of the Company under this
Agreement;
(g) The relocation of the Executive's principal place of employment to
a location more than fifty miles from the Executive's currently existing place
of employment; or
(h) Any other material breach of this Agreement by the Company.
The term "Change Of Control" shall mean the acquisition by any person
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of fifty percent (50%) or more of the outstanding interests or
outstanding voting securities of the Company; provided, however, that for
purposes of this subsection (i), the following acquisitions shall not constitute
a Change Of Control: (A) any acquisition directly from the Company, (B) any
acquisition by the Company, or (C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company.
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Exhibit B
to
Severance and Change Of Control Agreement
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(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Exhibit B) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or if any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest and
penalties, being hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of paragraph (c) below, all
determinations required to be made under this Exhibit B, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by a nationally recognized certified public accounting firm designated by the
Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within fifteen (15) business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting a Change of Control, the Executive may appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). The Accounting Firm shall assist the Executive with the
preparation and filing of any income tax return required of the Executive which
relates to the period or periods in which Executive received a Payment or a
Gross-Up Payment. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Exhibit B, shall be paid by the Company to the Executive within five (5) days of
the receipt of the Accounting Firm's
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determination. Any determination by the Accounting Firm shall be binding upon
the Company and the Executive. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to paragraph (c) below and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of a Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten (10) business days after the Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty
(30)-day period following the date on which the Executive gives such notice to
the Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) Give the Company any information reasonably requested by
the Company relating to such claim,
(ii) Take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) Cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) Permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without
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limitation on the foregoing provisions of this paragraph (c), the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to paragraph (c) above, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of paragraph (c) above) promptly
pay to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to paragraph (c) above,
a determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of any Gross-Up Payment required
to be paid.
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