Exhibit 10.17
EMPLOYMENT AGREEMENT
This Agreement (this "Agreement") is made as of January 1, 1998, by and
between Continental Can Company, Inc., a Delaware corporation (the "Company")
and Xxxx Xxxxx (the "Employee").
A. Employee is, and for some time in the past has been, a valued
Employee of the Company.
B. The Company and Employee now wish to enter into this Agreement on
the terms and conditions set forth hereafter, replacing any prior agreement of
employment between the Company and Employee;
For good and valuable consideration, including the mutual covenants
herein, the parties hereto agree as follows:
1. EMPLOYMENT; CAPACITY, DUTIES. Employee shall serve Company in the
position of Executive Vice President and shall have the duties and
responsibilities incident to that position. During the term of this Agreement,
Employee shall devote his full attention and best efforts to the performance of
such duties as shall be designated from time to time by Company's Board of
Directors or CEO, which duties shall be generally consistent with Employee's
position and with those duties that Employee has performed for Company prior to
the date hereof.
2. TERM OF EMPLOYMENT. Unless earlier terminated as hereafter provided,
this Agreement shall commence on the date hereof, and shall expire on December
31, 2000 (the "Expiration Date"). This Agreement may be extended by mutual
written agreement of the parties.
3. TERMINATION.
(a) Death. The employment of Employee under this Agreement shall
immediately terminate upon the death of Employee.
(b) Disability. In the event that Employee is for any reason unable
to perform the duties to be performed by Employee hereunder for a period for 180
consecutive days (or for any 200 out of 365 consecutive days) by reason of
Employee's Disability, the Board of Directors of the Company shall have the
option to terminate the employment of Employee under this Agreement effective
upon its giving written notice to Employee at any time following the expiration
of such 180-day period (or such 200 days). The term "Disability" as used in this
Section 3(b) means any mental or physical impairment that prevents the Employee
from performing the essential functions of his position with or without
reasonable accommodation as determined by a physician mutually agreeable to
Employee and the Company.
(c) Discharge for Cause. The employment of Employee under this
Agreement shall terminate immediately if the Company discharges Employee for
Cause. "Cause" means the Employee's (i) willful and intentional misconduct or
gross negligence in the performance of, or willful neglect of, the Employee's
duties, which has caused demonstrable and serious injury (monetary or otherwise)
to the Company, or (ii) conviction of, or plea of nolo contendere to, a felony:
provided, however, that no act or omission shall constitute "Cause" for purposes
of this Agreement unless the Board of Directors of the Company provides to the
Employee (a) written notice clearly and fully describing the particular acts or
omissions which the Board reasonably believes in good faith constitutes "Cause"
and (b) an opportunity, within 30 days following his receipt of such notice, to
meet in person with the Board of Directors to explain or defend the alleged acts
or omissions relied upon by the Board and, to the extent practicable, to cure
such acts or omissions. Further, no act or omission shall be considered as
"willful" or "intentional" if the Employee reasonably believed such acts or
omissions were in the best interests of the Company. Employee shall have the
right to contest a determination of Cause by the Company by requesting
arbitration in accordance with the terms of Section 7 hereof.
(d) Certain Terminations. If Employee's services should be
terminated by Company for any reason other than for Employee's death, Employee's
Disability for the period set forth in Section 3(b) hereof, or Cause, then
Employee shall be entitled to receive a lump sum cash payment equal to (i) the
total remaining unpaid amount of Employee's annual base salary under Section 4
hereof as in effect on the date of the termination, from the date of termination
until the Expiration Date, plus (ii) a pro rated bonus for the period from the
date of termination until the
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Expiration Date, based on Employee's average cash bonus for the three full
calendar years immediately preceding the date of termination ("Severance Pay").
(e) Offset for Other Severance Pay. There shall be no duplication of
Severance Pay in any manner. In this regard, Employee shall not be entitled to
Severance Pay hereunder for more than one position with the Company and its
affiliates. Further, Severance Pay shall be in lieu of any other payments or
benefits in the nature of severance benefits to which Employee has received or
will receive from the Company or any of its affiliates. Any other arrangement
providing severance benefits shall be deemed to be amended to eliminate any
obligation for benefits to be provided thereunder. If Employee is entitled to
any notice or payment in lieu of any notice of termination of employment
required by Federal, state or local law, including but not limited to the Worker
Adjustment and Retraining Notification Act, the Severance Pay to which the
Employee would otherwise be entitled under this Agreement shall be reduced by
the amount of any such payment, in lieu of notice.
(f) Mutual Release. Severance pay described in paragraph (d) of this
Section 3 shall be conditioned upon the execution of Employee and the Company of
a valid mutual release, to be prepared by the Company, in which Employee and
Company shall mutually release the other, to the maximum extent permitted by
law, from any and all claims either party may have against the other party that
relate to or arise out of Employee's employment or termination of employment,
except such claims arising under this Agreement, any employee benefit plan or
any other written plan or agreement ("Mutual Release").
The full amount of Severance Pay shall be paid to Employee within ten (10)
days following receipt by the Company of a Mutual Release which is property
executed by Employee and is not revoked by Employee before the eighth day
following its receipt by the Company.
4. Compensation. In exchange for the Employee's performance under the
terms of this Agreement and promises and covenants made by the Employee herein
and subject to Section 3 hereof, during the term of this Agreement, as
compensation for services to the Company pursuant to this Agreement, the Company
shall pay to Employee a base salary of $308,000 per year in accordance with the
normal payroll practices of Company. The Board of Directors of the Company will
review annually Employee's performance and compensation, and it may, in its sole
discretion from time to time, increase the compensation to be paid to Employee
as provided in this Section 4, or provide additional compensation to Employee,
whether permanently or for a limited period of time, in order to recognize and
fairly compensate Employee for the value of his services to the Company. A bonus
may be paid or stock options issued from time to time at the discretion of the
Board of Directors of the Company.
5. Benefits. During the term hereof, Company shall provide Employee
with the same benefits, including life and health insurance, vacation, and
retirement programs, it provides to its other similarly situated Employees.
6. CERTAIN COVENANTS.
(a) Covenant Not to Compete. In consideration of the payments made
to Employee pursuant to this Agreement, Employee shall not during the term of
this Agreement and for a period of two years after the termination of Employee's
employment with the Company, directly or indirectly, engage (whether as owner,
partner, stockholder, joint venturer, manager or investor) in any business that
competes, directly or indirectly, with the Company in the continental United
States, Puerto Rico or Europe (provided that the Employee shall not be
restricted hereby from owning or acquiring 5% or less of the outstanding voting
securities of a public company).
(b) Protection of Confidential Information.
(i) Employee agrees that he will not at any time during or
following his employment by the Company, without Company's prior written
consent, divulge any Confidential Information to any other person or entity or
use any Confidential Information for his own benefit. "Confidential Information"
means all information, whether oral or written, previously or hereafter
developed, acquired or used by the Company or its subsidiaries and relating to
the business of the Company and its subsidiaries that is not generally known to
others in the Company's area of business, including without limitation trade
secrets, methods or practices developed by Company or any of its subsidiaries,
financial results or plans, customer or client lists, personnel information,
information relating to negotiations with clients or prospective clients,
proprietary software, databases, programming or data transmission methods, or
copyrighted materials (including
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without limitation, brochures, layouts, letters, art work, copy, photographs or
illustrations). It is expressly understood that the foregoing list shall be
illustrative only and is not intended to be an exclusive or exhaustive list of
"Confidential Information."
(ii) Upon termination of employment, for any reason
whatsoever, regardless of whether either party may be at fault, Employee will
return to Company all physical Confidential Information in Employee's
possession.
(c) Non-solicitation of Employees. Employee agrees, for so long as
Employee remains employed by Company, and for a period of two (2) years
following the termination of Employee's employment with the Company, Employee
shall not, either for Employee's own account, or on behalf of any other person
or entity, solicit, suggest or request that any other person employed by Company
or one of its affiliates leave such employment for the purpose of becoming
employed by Employee or any other person or entity.
(d) Extent of Restrictions. Employee acknowledges that the
restrictions contained in this Section 6 correctly set forth the understanding
of the parties at the time this Agreement is entered into, are reasonable and
necessary to protect the legitimate interests of Company, and that any violation
will cause substantial injury to Company. In the event of any such violation,
Company shall be entitled, in addition to any other remedy, to preliminary or
permanent injunctive relief. If any court having jurisdiction shall find that
any part of the restrictions set forth in this Agreement are unreasonable in any
respect, it is the intent of the parties that the restrictions set forth herein
shall not be terminated, but that this agreement shall remain in full force and
effect to the extent (as to time periods and other relevant factors) that the
court shall find reasonable.
7. ARBITRATION OF CLAIMS. Employee shall settle by arbitration any
dispute or controversy arising in connection with the Agreement, whether or not
such dispute involves a plan subject to the Employee Retirement Income Security
of 1974, as amended ("ERISA"). Such arbitration shall be conducted in accordance
with the rules of the American Arbitration Association before a panel of three
arbitrators sitting in New York, NY. The award of the arbitrators shall be final
and nonappealable, and judgment may be entered on the award of the arbitrators
in any court having proper jurisdiction. All expenses of such arbitration shall
be borne by the Company and Employee as determined by the arbitrators.
8. TAX WITHHOLDING. All payments to the Employee under this Agreement
will be subject to the withholding of all applicable employment and income
taxes.
9. SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
10. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of the Company.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. This
Agreement may not be modified in any manner except by a written instrument
signed by both the Company and the Employee.
12. NOTICES. Any notice required under this Agreement shall be in writing
and shall be delivered by certified mail return receipt requested to each of the
parties as follows or to such other address as either by written notice to the
other shall specify:
To the Employee:
Xxxx Xxxxx
0 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
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To the Company:
CONTINENTAL CAN COMPANY, INC.
000 Xxxxxxx 0 Xxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
13. GOVERNING LAW. The provisions of this Agreement shall be construed
in accordance of the laws of the State of New York, except to the extent
Ppreempted by ERISA.
IN WITNESS WHEREOF, the Employee and the Company have executed this
Agreement as of the date and year first above written.
CONTINENTAL CAN COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
/s/ Xxxx Xxxxx
---------------
Xxxx Xxxxx
Schedule of Substantially Identical Agreements
1.) Between the Company and Xxxx Xxxxxxx as Vice President at a salary of
$121,000 per year.
2.) Between the Company and Xxxxxxx XxXxxxxxxx as President of Continental
Plastic Containers, Inc. at a salary of $302,500 per year.
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