EXHIBIT 10.24
Execution Copy
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This Amended and Restated Executive Employment Agreement (this
"Agreement"), dated as of May 23, 2003 (the "Effective Date"), is made by and
between Constar International Inc., a Delaware corporation, having its principal
offices at Xxx Xxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Company"), and
Xx. Xxxxx X. Xxxx (the "Executive").
RECITALS
WHEREAS, the Executive is currently employed by the Company as
its Chief Financial Officer, pursuant to the terms of an Employment Agreement
dated November 20, 2002 (the "Original Agreement").
WHEREAS, the Company desires to assure itself of the continued
employment of the Executive and to encourage his continued attention and
dedication to the best interests of the Company, by replacing the Original
Agreement with this amended and restated Agreement.
WHEREAS, the Executive desires to remain and continue in the
employment of the Company in accordance with the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound hereby, the
Company and the Executive hereby agree as follows:
1. Definitions.
1.1. "Affiliate" means any person or entity controlling,
controlled by or under common control with the Company.
1.2. "Board" means the Board of Directors of the Company.
1.3. "Cause" means (a) the Executive, in carrying out his
duties under this Agreement, engages in gross misconduct or gross negligence
resulting in a material adverse effect on the Company, (b) the Executive
embezzles any amount of the Company's assets, (c) the Executive is convicted
(including a plea of guilty or nolo contendere) of a felony involving moral
turpitude, (d) the Executive's breach of any covenant contained in Section 9
below, or (e) the Executive's willful and material failure to follow the lawful
instructions of the Company's Board (consistent with Section 4 below). For
purposes of this Section 1.3, no act, or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by him in bad
faith and without reasonable belief that his action or omission was in the best
interest of the Company. Any act or omission to act by the Executive in reliance
upon an opinion of counsel to the Company shall not be deemed to be willful.
1.4. "Change in Control" shall mean:
1.4.1. the acquisition after the Effective Date by an
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of more than 30% of the combined voting power of the
voting securities of the Company entitled to vote generally in the
election of directors (the "Voting Securities"); provided, however, that
the following acquisitions shall not constitute a Change in Control: (a)
any acquisition, directly or indirectly by or from the Company or any
subsidiary of the Company, or by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any subsidiary of the
Company, (b) any acquisition by any underwriter in connection with any
firm commitment underwriting of securities to be issued by the Company,
or (c) any acquisition by any corporation if, immediately following such
acquisition, 70% or more of the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation (entitled to vote
generally in the election of directors), are beneficially owned,
directly or indirectly, by all or substantially all of the individuals
and entities who, immediately prior to such acquisition, were the
beneficial owners of the then outstanding common stock of the Company
("Common Stock") and the Voting Securities in substantially the same
proportions, respectively, as their ownership, immediately prior to such
acquisition, of the Common Stock and Voting Securities; or
1.4.2. The occurrence after the Effective Date of a
reorganization, merger or consolidation, other than a reorganization,
merger or consolidation with respect to which all or substantially all
of the individuals and entities who were the beneficial owners,
immediately prior to such reorganization, merger or consolidation, of
the Common Stock and Voting Securities beneficially own, directly or
indirectly, immediately after such reorganization, merger or
consolidation 70% or more of the then outstanding common stock and
voting securities (entitled to vote generally in the election of
directors) of the corporation resulting from such reorganization, merger
or consolidation in substantially the same proportions as their
respective ownership, immediately prior to such reorganization, merger
or consolidation, of the Common Stock and Voting Securities; or
1.4.3. The occurrence after the Effective Date of (a) a
complete liquidation or substantial dissolution of the Company, or (b)
the sale or other disposition of all or substantially all of the assets
of the Company, in each case other than to a subsidiary, wholly-owned,
directly or indirectly, by the Company or to a holding company of which
the Company is a direct or indirect wholly owned subsidiary prior to
such transaction; or
1.4.4. During any period of twenty-four (24)
consecutive months commencing upon the Effective Date, the individuals
at the beginning of any such period who constitute the Board and any new
director (other than a director designated by a person or entity who has
entered into an agreement with the Company or other person or entity to
effect a transaction described in Sections 1.4.1, 1.4.2 or 1.4.3 above)
whose
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election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of any such period or whose election or nomination for
election was previously so approved, cease for any reason to constitute
a majority of the Board.
Notwithstanding the above, a "Change in Control" shall not include any event,
circumstance or transaction which results from the action of any entity or group
which includes, is affiliated with or is wholly or partially controlled by one
or more executive officers of the Company and in which the Executive
participates.
1.5. "Disability" means the Executive's inability to render,
for a period of six consecutive months, services hereunder by reason of physical
or mental disability, as determined by the written medical opinion of an
independent medical physician mutually acceptable to the Executive and the
Company. If the Executive and the Company cannot agree as to such an independent
medical physician, each shall appoint one medical physician and those two
physicians shall appoint a third physician who shall make such determination. In
no event shall the Executive be considered disabled for the purposes of this
Agreement unless the Executive is deemed disabled pursuant to the Company's
long-term disability plan, if one is maintained by the Company.
1.6. "Good Reason" means and shall be deemed to exist if,
without the prior express written consent of the Executive, (a) the Executive
suffers a material change in his reporting obligations, (b) the Executive
suffers a material change in the duties, responsibilities or effective authority
associated with his titles and positions, as set forth and described in Section
4 of this Agreement (other than as a result of the Executive's resignation from
the Board or a determination by the Board, that a nomination for election to the
Board would be prohibited by any governance, rule, regulation or mandate
promulgated by any governmental authority or agency, or any stock exchange or
other self-regulatory organization, including without limitation the Securities
and Exchange Commission, NASDAQ and any other stock exchange, market or
automated quotation system upon which the Company's securities are listed or
traded); (c) a reduction by the Company of the Executive's "Base Salary" (as
increased from time to time in accordance with Section 5.1 below) or in the
other compensation and benefits (except for benefits payable under the Company's
equity, incentive or bonus plans) below a level which is substantially
equivalent in the aggregate, to those payable to the Executive hereunder, or a
material adverse change in the terms or conditions on which any such
compensation or benefits are payable as in effect on the date hereof or as the
same may be increased from time to time during the term of this Agreement; (d)
the Company fails to pay the accrued Executive's compensation or to provide for
the Executive's accrued benefits when due; (e) the Executive's office location
is moved to a location more than 30 miles from Philadelphia, Pennsylvania
(excluding the initial relocation of the Company's headquarters from One Crown
Way and thereafter such new location shall be the point from which this
relocation restriction shall be applied); or (f) the failure or refusal of the
"Company's Successor" (as defined in Section 8.2 below) to expressly assume this
Agreement in writing, and all of the duties and obligations of the Company
hereunder in accordance with Section 8.2.
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2. Employment. Subject to the terms and provisions set forth in
this Agreement and specifically as provided in Section 4.1, the Company hereby
agrees that the Executive shall during the "Term of Employment" (as defined in
Section 3 below) be nominated for election at the Company's regularly scheduled
annual meeting of stockholders as a member of and to the Board and further
agrees that during the Term of Employment that the Executive shall be employed
as the chief financial officer of the Company, and the Executive hereby accepts
such employment and, if so elected by the stockholders, such directorship.
3. Term of Employment. The term of employment under this Agreement
shall commence on the Effective Date and, unless earlier terminated under
Section 6 below or extended pursuant to the next sentence, shall terminate on
the third anniversary of the Effective Date (the "Term of Employment"). The Term
of Employment shall automatically be extended, subject to the same terms,
conditions and limitations as provided herein, for an additional one year period
on the first anniversary of the Effective Date and on each such anniversary date
thereafter unless, not later than 180 days prior to any such anniversary, either
party to this Agreement shall have given notice to the other that the Term of
Employment shall not be extended or further extended beyond its then
automatically extended term, if any.
4. Positions, Responsibilities and Duties.
4.1. Positions. During the Term of Employment, the Executive
shall be employed and serve as the chief financial officer of the Company and he
shall be nominated for election as a member of and to the Board of the Company
at the Company's regularly scheduled annual meeting of stockholders, provided
that such nomination shall not be prohibited by any governance, rule, regulation
or mandate promulgated by any governmental authority or agency, or any stock
exchange or other self-regulatory organization, including without limitation the
Securities and Exchange Commission, NASDAQ and any other stock exchange, market
or automated quotation system upon which the Company's securities are listed or
traded. In such positions, the Executive shall have the duties, responsibilities
and authority normally associated with the office and position of director and
chief financial officer of a publicly-traded corporation. The Executive shall
report to the Board and the chief executive officer. All other accounting,
finance and treasury personnel shall report to the Executive and/or his
designees. Notwithstanding the above, the Executive shall not be required to
perform any duties and responsibilities which would be likely to result in a
non-compliance with or violation of any applicable law or regulation.
4.2. Duties. During the Term of Employment, the Executive
shall have responsibility for and authority over all accounting, finance and
treasury operations of the Company and its Affiliates. Additionally, during the
Term of Employment, the Executive shall devote substantially all of his business
time, during normal business hours, to the business and affairs of the Company
and the Executive shall use his reasonable best efforts to perform faithfully
and efficiently the duties and responsibilities contemplated by this Agreement;
provided, however, that the Executive shall be allowed, to the extent such
activities do not substantially interfere with the performance by the Executive
of his duties and responsibilities hereunder, to (a) manage the Executive's
personal, financial and legal affairs, and (b) serve on corporate, civic or
charitable boards or committees.
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5. Compensation and Other Benefits.
5.1. Base Salary. During the Term of Employment, the
Executive shall receive a base salary per annum payable in accordance with the
Company's normal payroll practices of no less than US $275,000, which the Board
shall review annually and may, in its sole discretion, increase (but not
decrease) ("Base Salary").
5.2. Annual Bonus. During the Term of Employment, the
Executive shall participate in the Company's Annual Incentive & Management Stock
Purchase Plan (the "AIMSPP") as maintained by the Company from time to time for
the benefit of senior executives. In respect of each calendar year during the
Term of Employment, beginning in calendar year 2003, the Executive shall be
eligible for an annual bonus (the "Bonus") if the Executive and/or the Company
achieves performance goals established by the Board in good faith and consistent
with the AIMSPP.
5.3. Retirement and Savings Plans. During the Term of
Employment, the Executive shall be eligible to participate in all pension,
retirement, savings, 401(k) and other employee pension benefit plans, policies
and programs (the "Retirement Plans") maintained by the Company from time to
time for the benefit of senior executives and/or other employees. However,
nothing in this Section 5.3 shall be construed to require the Company to
establish or maintain any such Retirement Plans.
5.4. Supplemental Executive Retirement Plan. During the Term
of Employment, the Executive shall participate in the Company's Supplemental
Executive Retirement Plan (the "SERP") as maintained by the Company from time to
time for the benefit of senior executives.
5.5. Welfare Benefit Plans. During the Term of Employment,
the Executive, the Executive's spouse, if any, and his eligible dependents, if
any, shall be eligible to participate in and be covered on the same basis as
other senior executive officers of the Company under all the welfare benefit
plans, policies and/or programs maintained by the Company from time to time
including, without limitation, all medical, hospitalization, dental, disability,
life, accidental death and dismemberment and travel accident insurance plans,
policies and/or programs (the "Welfare Plans"). However, nothing in this Section
5.4 shall be construed to require the Company to establish or maintain any such
Welfare Plans. The Welfare Plans and the Retirement Plans are sometimes referred
to collectively herein as the "Benefit Plans."
5.6. Expense Reimbursement. During and in respect of the Term
of Employment, the Executive shall be entitled to receive prompt reimbursement
for expenses incurred by the Executive in performing his duties and
responsibilities hereunder in accordance with the Company's policy for senior
executives of the Company.
5.7. Vacation and Fringe Benefits. During the Term of
Employment, the Executive shall be entitled to at least four weeks paid vacation
each calendar year, plus paid time off due to illness or personal reasons in
accordance, in all such cases, with Company policy.
5.8. Equity Compensation. During the Term of Employment, the
Executive shall be eligible to participate in and receive awards under the
Company's 2002 Stock-Based
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Incentive Compensation Plan, and any other equity-based incentive plans as
maintained by the Company from time to time for the benefit of senior
executives.
6. Termination. Upon the occurrence of any termination of the
Executive's employment as chief financial officer, the Executive shall and shall
be deemed to immediately resign from any membership on the Board and from any
committees thereof (and the Executive shall promptly tender to the Board a
written resignation letter effecting the foregoing).
6.1. Termination Due to Death. In the event of the
Executive's death, the Executive's estate or his legal representative, as the
case may be, shall be entitled to: (a) any Base Salary earned but unpaid as of
the date of death and Base Salary continuation through the end of the month in
which the Executive's death occurs; (b) a pro-rata payment for the year of the
Executive's death equal to the "target" Bonus plus the matching incentive under
the AIMSPP (the "Total Award") for such year multiplied by a fraction, the
numerator which is the number of days transpired in the calendar year up to and
including the date of the death of the Executive, and the denominator of which
is 365; (c) immediate payment of any unpaid expense reimbursements, deferred
compensation and unused accrued vacation days through the date of the
Executive's death; and (d) any other payments and/or benefits which the
Executive, the Executive's estate or the Executive's legal representative is
entitled to receive under any of the Benefit Plans, the AIMSPP, the SERP or
otherwise in accordance with the terms of such plan or arrangement.
6.2. Termination Due to the Executive's Disability. Upon 30
days prior written notice to the Executive, the Company may terminate the
Executive's employment hereunder due to Disability. In such event, the Executive
or his legal representative, as the case may be, shall be entitled to: (a) any
Base Salary earned but unpaid as of the date of the Executive's termination due
to Disability and Base Salary continuation through the end of the month in which
such termination occurs; (b) a pro-rata payment for the year of termination
equal to the Total Award under the AIMSPP for such year multiplied by a
fraction, the numerator of which is the number of days transpired in the
calendar year up to and including the date on which the Executive is terminated
by the Company due to Disability, and the denominator of which is 365; (c)
immediate payment of any unpaid expense reimbursements, deferred compensation
and unused accrued vacation days through the date of termination; and (d) any
other payments and/or benefits which the Executive or the Executive's legal
representative is entitled to receive under any of the Benefit Plans, the
AIMSPP, the SERP or otherwise in accordance with the terms of such plan or
arrangement.
6.3. Termination Without Cause or by the Executive for Good
Reason Prior to Change in Control. Prior to a Change in Control and upon 30 days
prior written notice to the Executive, the Company may terminate the Executive's
employment hereunder without Cause. Prior to a Change in Control and upon 30
days prior written notice to the Company the Executive may terminate his
employment hereunder with the Company for Good Reason. In either such event
(unless the Executive has incurred a termination under Section 6.1 or 6.2
above), the Executive shall be entitled to, upon execution and effectiveness of
a general release in substantially the form attached as exhibit "A" and upon
resignation by the Executive from the Board: (a) (i) Base Salary earned but
unpaid as of the date of the Executive's termination, (ii) Base Salary
continuation for twenty-four months, and (iii) payment of two times the Total
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Award under the AIMSPP for the year in which any termination occurs paid in 24
substantially equal payments over the Base Salary continuation period; (b)
continuation of medical benefits in effect as of the date of termination for a
period of two years following the date of termination at the Company's sole
expense and following the expiration of this coverage period, COBRA continuation
coverage under the Company's medical plan for 18 months in accordance with
applicable law at the Executive's sole expense provided that the Executive is
not enrolled in another group health plan; (c) immediate payment of any unpaid
expense reimbursements, deferred compensation and unused accrued vacation days
through the date of termination; and (d) any other payments and/or benefits
which the Executive is entitled to receive under any of the Benefit Plans, the
AIMSPP, the SERP or otherwise in accordance with the terms of such plan or
agreement. In the event the Executive intends to terminate his employment with
the Company for Good Reason such prior written notice shall specify the
particular act or acts, or failure to act, which is or are the basis for the
Executive's decision to so terminate his employment for Good Reason. The Company
shall be given 30 days after such notice to correct such act or failure to act.
Upon failure of the Company, with such 30 day period, to correct such act or
failure to act, the Executive may proceed to terminate his employment with the
Company.
In the event that a Change in Control occurs within six months following the
Executive's termination of employment under this Section 6.3, the Executive
shall be entitled to receive the additional payments and benefits to which he
would be entitled had his employment terminated following a Change in Control
under Section 6.4 below.
6.4. Termination Without Cause or by the Executive for Good
Reason After a Change in Control. After a Change in Control and upon 30 days
prior written notice to the Executive, the Company may terminate the Executive's
employment hereunder without Cause. After a Change in Control and upon 30 days
prior written notice to the Company, the Executive may terminate his employment
hereunder with the Company for Good Reason. In either such event (unless the
Executive has incurred a termination under Section 6.1 or 6.2 above), the
Executive shall be entitled to, upon execution and effectiveness of a general
release in substantially the form attached as exhibit "A" and upon resignation
by the Executive from the Board: (a) (i) Base Salary earned but unpaid as of the
date of the Executive's termination, (ii) a lump sum payment equal to three
times Base Salary plus three times the Total Award under the AIMSPP for the year
in which any such termination occurs; (b) continuation of medical benefits in
effect as of the date of termination for a period of three years following the
date of termination at the Company's sole expense and following the expiration
of this coverage period, COBRA continuation coverage under the Company's medical
plan for 18 months in accordance with applicable law at the Executive's sole
expense provided that the Executive is not enrolled in another group health
plan; (c) immediate payment of any unpaid expense reimbursements, deferred
compensation and unused accrued vacation days through the date of termination;
and (d) any other payments and/or benefits to which the Executive is entitled to
receive under any of the Benefit Plans, the AIMSPP, the SERP or otherwise in
accordance with the terms of such plan or arrangement.
6.5. Termination For Cause. Subject to the provisions of this
Section 6.5, the Company may terminate the Executive's employment for Cause. In
such event, the Executive shall be entitled to: (a) any Base Salary earned but
unpaid through the date of termination; (b) immediate payment of any unpaid
expense reimbursements, deferred compensation and
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unused accrued vacation days through the date of termination; and (c) any other
payments and/or benefits to which the Executive is entitled to receive under any
of the Benefit Plans, the AIMSPP, the SERP or otherwise in accordance with the
terms of such plan or arrangement. In any case described in this Section 6.5,
the Executive shall be given written notice authorized by a vote of at least a
majority of the members of the Board that the Company intends to terminate the
Executive's employment for Cause. Such written notice shall specify the
particular act or acts, or failure to act, which is or are the basis for the
decision to so terminate the Executive's employment for Cause. Executive shall
be given 30 days after such notice to cure such act or failure to act to the
satisfaction of the Board. Upon failure of the Executive, within such 30 day
period, to correct such act or failure to act, the Executive shall be deemed
terminated for Cause.
6.6. Termination Without Good Reason. Upon 30 days prior
written notice to the Company, the Executive shall have the right to terminate
his employment hereunder without Good Reason or any reason at all. In such
event, the Executive shall be entitled to: (a) any Base Salary earned but unpaid
through the date of termination; (b) immediate payment of any unpaid expense
reimbursements, deferred compensation and unused accrued vacation days through
the date of termination; and (c) any other payments and/or benefits to which the
Executive is entitled to receive under any of the Benefit Plans, the AIMSPP, the
SERP or otherwise in accordance with the terms of such plan or arrangement.
6.7. Certain Other Payments. If the Executive is liable for
the payment of any excise tax (the "Basic Excise Tax") pursuant to Section 4999
of the Code, or any successor or like provision, with respect to any payment or
property transfers received or to be received under this Agreement or otherwise,
the Company shall pay the Executive an amount (the "Special Reimbursement")
which, after payment to the Executive (or on the Executive's behalf) of any
federal, state and local taxes, including, without limitation, any further
excise tax under said Section 4999, with respect to or resulting from the
Special Reimbursement, equals the net amount of the Basic Excise Tax. The
Special Reimbursement shall be paid as soon as practicable after it is
determined by the Company or the Executive and reviewed for accuracy by the
Company's certified public accountants.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan, policy or program provided or
maintained by the Company and/or any Affiliate and for which the Executive may
qualify, nor shall anything herein limit or otherwise prejudice such rights as
the Executive may have under any other existing or future agreements with the
Company and/or any Affiliate, including, without limitation, any stock option
agreements or plans. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plans or programs of the Company and/or
any Affiliate at or subsequent to the date of termination shall be payable in
accordance with such plans or programs. Notwithstanding the above, the Company
shall be under no obligation to establish or maintain any such plan, policy or
program.
8. Successors.
8.1. The Executive. This Agreement is personal to the
Executive and, without the prior express written consent of the Company, shall
not be assignable by the Executive, except that the Executive's rights to
receive any compensation or benefits under this Agreement
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may be transferred or disposed of pursuant to testamentary disposition,
intestate succession or pursuant to a domestic relations order. This Agreement
shall inure to the benefit of and be enforceable by the Executive's heirs,
beneficiaries and/or legal representatives.
8.2. The Company. This Agreement shall inure to the benefit
of and be binding upon the Company and its respective successors and assigns.
The Company shall require any successor to all or substantially all of its
business and/or assets, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise (the "Company's Successor"),
by an agreement in form and substance satisfactory to the Executive, expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent as the Company would be required to perform if no such succession had
taken place.
9. Restrictive Covenants.
9.1. Non-Solicitation. If the Executive's employment with the
Company terminates for any reason, the Executive, for the greater of twelve
months after any such termination or the period during which the Executive
receives Base Salary continuation after any such termination (for these
purposes, the Executive shall be deemed to receive Base Salary continuation for
three years if he has incurred a termination of service under Section 6.4),
shall not (except on the Company's behalf), directly or indirectly, on his own
behalf or on behalf of any other person, firm, partnership, corporation or other
entity, (a) solicit or service the business of any of the Company's or its
Affiliates' clients, any of the Company's or its Affiliates' former clients
which were clients within twelve months prior to the termination of his
employment or any of the prospective clients which were being actively solicited
by the Company or its Affiliates at the time of the termination of his
employment or (b) attempt to cause or induce any employee of the Company or its
Affiliates to leave the Company or the Affiliate.
9.2. Non-Competition. If the Executive's employment with the
Company terminates for any reason, except by non-renewal of this Agreement by
the Company for reason other than for Cause, the Executive, for the greater of:
twelve months after any such termination or the period during which the
Executive receives Base Salary continuation after any such termination (for
these purposes, the Executive shall be deemed to receive Base Salary
continuation for three years if he has incurred a termination of service under
Section 6.4), shall not, directly or indirectly, within or with respect to the
United States of America engage, without the consent of the Company, in any
business or activity, whether as an employee, consultant, partner, principal,
agent, representative, stockholder or in any other capacity, or render any
services or provide any advice to any business, activity, person or entity which
competes with any PET packaging business; provided, however, that the
Executive's ownership of not more than 5% of the stock of any publicly-traded
corporation shall not be a violation of this Section 9.2. By agreeing to this
contractual modification prospectively at this time, the parties intend to make
this provision enforceable under the law(s) of all applicable states so that the
entire agreement not to compete and/or this Agreement as prospectively modified
shall remain in full force and effect and shall not be rendered void or illegal.
Such modifications shall not affect the payments made to the Executive under
this Agreement. The Executive acknowledges that his skills are such that he can
be gainfully employed in noncompetitive employment and that the agreement not to
compete will in no way prevent him from earning a living. The Executive
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understands and agrees that the rights and obligations set forth in this Section
9.2 shall extend beyond the Term of Employment.
9.3. Confidentiality. The Executive shall not, during the
Term of Employment and at any time thereafter, without the prior express written
consent of the Company, directly or indirectly divulge, disclose or make
available or accessible any Confidential Information (as defined below) to any
person, firm, partnership, corporation, trust or any other entity or third party
(other than when required to do so in good faith to perform the Executive's
duties and responsibilities under this Agreement or when (a) required to do so
by a lawful order of a court of competent jurisdiction, any governmental
authority or agency, or any recognized subpoena power, or (b) necessary to
prosecute the Executive's rights against the Company or its Affiliates' or to
defend himself against any allegations). In addition, the Executive shall not
create any derivative work or other product based on or resulting from any
Confidential Information (except in the good faith performance of his duties
under this Agreement). The Executive shall also proffer to the Board's designee,
no later than the effective date of any termination of his employment with the
Company for any reason, and without retaining any copies, notes or excerpts
thereof, all memoranda, computer disks or other media, computer programs,
diaries, notes, records, data, customer or client lists, marketing plans and
strategies, and any other documents consisting of or containing Confidential
Information that are in the Executive's actual or constructive possession or
which are subject to his control at such time. For purposes of this Agreement,
"Confidential Information" shall mean all information respecting the business
and activities of the Company, or any Affiliate of the Company, including,
without limitation, the terms and provisions of this Agreement, the clients,
customers, suppliers, employees, consultants, computer or other files, projects,
products, computer disks or other media, computer hardware or computer software
programs, marketing plans, financial information, methodologies, know-how,
processes, practices, approaches, projections, forecasts, formats, systems, data
gathering methods and/or strategies of the Company or any Affiliate.
Notwithstanding the immediately preceding sentence, Confidential Information
shall not include any information that is, or becomes, generally available to
the public (unless such availability occurs as a result of the Executive's
breach of any portion of this Section 9.3).
9.4. Ownership of Inventions. Each Invention (as defined
below) made, conceived or first actually reduced to practice by the Executive,
whether alone or jointly with others, during the term of Executive's employment
with the Company and each Invention made, conceived or first actually reduced to
practice by the Executive, whether alone or jointly with others, within one year
after the termination of Executive's employment with the Company which relates
in any way to work performed for the Company during the term of Executive's
employment, shall be promptly disclosed in writing to the Board. Such report
shall be sufficiently complete in technical detail and appropriately illustrated
by sketch or diagram to convey to one skilled in the art of which the invention
pertains, a clear understanding of the nature, purpose, operations, and, to the
extent known, the physical, chemical, biological or other characteristics of the
Invention. As used in this Agreement, "Invention" means any invention, discovery
or innovation with regard to any facet of the Company's business whether or not
patentable, made, conceived, or first actually reduced to practice by Executive,
alone or jointly with others, in the course of, in connection with, or as a
result of service as an employee of the Company, including any art, method,
process, machine, manufacture, design or composition of matter, or any
improvement thereof. Each Invention, as herein defined, shall be the sole and
10
exclusive property of the Company. The Executive agrees to execute an assignment
to the Company or its nominee of the Executive's entire right, title and
interest in and to any Invention, without compensation beyond that provided in
this Agreement. The Executive further agrees, upon the request of the Company
and at its expense, that the Executive will execute any other instrument and
document necessary or desirable in applying for and obtaining patents in the
United States and in any foreign country with respect to any Invention. The
Executive further agrees, whether or not the Executive is then an employee of
the Company, to cooperate to the extent and in the manner reasonably requested
by the Company in the prosecution or defense of any claim involving a patent
covering any Invention or any litigation or other claim or proceeding involving
any Invention covered by this Agreement, but all expenses thereof shall be paid
by the Company.
9.5. Injunctive Relief. The Executive acknowledges and agrees
that the Company will have no adequate remedy at law, and would be irreparably
harmed, if the Executive breaches or threatens to breach any of the provisions
of this Section 9 of this Agreement. The Executive agrees that the Company shall
be entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of this Section 9, and to specific performance of each of the
terms of such Section in addition to any other legal or equitable remedies that
the Company may have. The Executive further agrees that he shall not, in any
equity proceeding relating to the enforcement of the terms of this Section 9,
raise the defense that the Company has an adequate remedy at law.
9.6. Special Severability. The terms and provisions of this
Section 9 are intended to be separate and divisible provisions and if, for any
reason, any one or more of them is held to be invalid or unenforceable, neither
the validity nor the enforceability of any other provision of this Agreement
shall thereby be affected. It is the intention of the parties to this Agreement
that the potential restrictions on the Executive's future employment imposed by
this Section 9 be reasonable in both duration and geographic scope and in all
other respects. If for any reason any court of competent jurisdiction shall find
any provisions of this Section 9 unreasonable in duration or geographic scope or
otherwise, the Executive and the Company agree that the restrictions and
prohibitions contained herein shall be effective to the fullest extent allowed
under applicable law in such jurisdiction.
10. Miscellaneous.
10.1. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, applied without
reference to principles of conflict of laws. Both the Executive and the Company
agree to appear before and submit exclusively to the jurisdiction of the state
and federal courts located within Philadelphia, Pennsylvania with respect to any
controversy, dispute, or claim arising out of or relating to this Agreement. The
Executive further agrees that the Company may serve him with judicial process
via registered or certified mail and that the Chief Executive Officer of the
Company shall at all times be the Executive's agent for service of judicial
process, and the Executive hereby appoints the Chief Executive Officer of the
Company as the Executive's agent for that and any other related purpose.
11
10.2. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement. The Company agrees to
pay, to the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company or others of the validity or enforceability of,
or liability under, any provision of this Agreement.
10.3. Amendments. This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
10.4. Mutual Intent. Both parties participated in the drafting
of the Agreement, and the language used in this Agreement is the language chosen
by the Executive and the Company to express their mutual intent. Both the
Executive and the Company agree that in the event that any language, section,
clause, phrase or word used in the Agreement is determined to be ambiguous, no
presumption shall arise against or in favor of either party and that no rule of
strict construction shall be applied against either party with respect to such
ambiguity.
10.5. Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand-delivery to the other parties or
by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
To the Company: Chairman of the Compensation Committee
Constar International Inc.
Xxx Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000
and to Chief Executive Officer
Constar International Inc.
Xxx Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000
With a copy to Company's
counsel at: Xxxxxxx X. Xxxxxx, Esq.
Dechert LLP
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
12
To the Executive: Xx. Xxxxx X. Xxxx
Xxx Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000
or to such other address as any party shall have furnished to the others in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
10.6. Withholding. The Company may withhold from any amounts
payable under this Agreement such federal, state or local income taxes to the
extent the same required to be withheld pursuant to any applicable law or
regulation.
10.7. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
10.8. Captions. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect.
10.9. Counterparts. This Agreement may be executed in one or
more counterparts each of which shall be deemed an original instrument, but all
of which together shall constitute but one and the same Agreement.
10.10. Beneficiaries/References. The Executive shall be
entitled to select (and change) a beneficiary or beneficiaries to receive any
compensation or benefit payable hereunder following the Executive's death, and
may change such election, in either case by giving the Company written notice
thereof. In the event of the Executive's death or a judicial determination of
his incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary(ies), estate or other legal
representative(s).
10.11. Entire Agreement. This Agreement contains the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
10.12. Representations.
10.12.1. Option Awards. The Company represents and
warrants to the Executive that all shares issued pursuant to any equity
award granted to the Executive by the Company, upon issuance to the
Executive, will be duly authorized, fully paid and non-assessable. A
sufficient number of shares for each such equity award will be properly
reserved.
10.12.2. Authorization. The Company represents and
warrants to the Executive that this Agreement will be authorized by all
necessary action of the Company and will be the binding agreement of the
Company, enforceable against it in accordance with the terms thereof.
The Company is not prevented from entering into or
13
performing this Agreement by any law, order, rule or regulation, its
certificate of incorporation, bylaws or any agreement to which it is a
party.
10.12.3. Duties of the Employee The Executive
represents and warrants that the performance by Executive of the
Executive's duties and obligations under this Agreement will not violate
any agreement between the Executive and any other person, firm,
partnership, corporation or other organization.
10.13. Survivorship. The respective rights and obligations of
the parties hereunder shall survive any termination of this Agreement or the
Executive's Term of Employment hereunder for any reason to the extent necessary
to the intended provision of such rights and the intended performance of such
obligations.
10.14. All Prior Agreements Terminated. This Agreement
terminates the prior Employment Agreement between the Company and the Executive
entered into November 20, 2002.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and the Company has caused this Agreement to be executed in its name on its
behalf, all as of the day and year first above written.
Constar International Inc.
/s/ Xxxxxxx X. Xxxxx
----------------------------------
By: Xxxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxx
----------------------------------
Xxxxx X. Xxxx
14
EXHIBIT A--GENERAL RELEASE
IN CONSIDERATION OF the payment of $10.00, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, and in consideration
of the terms and conditions contained in the Employment Agreement, dated as of
_________, (the "Employment Agreement") by and between _____________ (the
"Employee") and Constar International Inc. (the "Company"), the Employee, on
behalf of himself and his heirs, executors, administrators, and assigns,
releases and discharges the Company and its past present and future
subsidiaries, divisions, affiliates and parents (including without limitation to
the foregoing Crown Cork & Seal Company, Inc.), and their respective current and
former officers, directors, employees, agents, and/or owners, and their
respective successors, and assigns and any other person or entity claimed to be
jointly or severally liable with the Company or any of the aforementioned
persons or entities (the "Released Parties") from any and all manner of actions
and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments, charges, claims, and demands whatsoever ("Losses") which
the Employee and his heirs, executors, administrators, and assigns have, had, or
may hereafter have, against the Released Parties or any of them arising out of
or by reason of any cause, matter, or thing whatsoever from the beginning of the
world to the date hereof, including without limitation, any and all matters
relating to the Employee's employment by the Company and the cessation thereof,
and any and all matters arising under any federal, state, or local statute,
rule, or regulation, or principle of contract law or common law, including but
not limited to, the Family and Medical Leave Act of 1993, as amended, 29 U.S.C.
(S)(S) 2601 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. (S)(S) 2000 et seq., the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. (S)(S) 621 et seq. (the "ADEA"), the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. (S)(S) 12101 et seq., the Worker
Adjustment and Retraining Notification Act of 1988, as amended, 29 U.S.C. (S)(S)
2101 et seq., the Employee Retirement Income Security Act of 1974, as amended,
29 U.S.C. (S)(S) 1001 et seq., the Pennsylvania Human Relations Act, as amended,
43 P.S. (S)(S) 955 et. seq., and any other equivalent or similar federal, state,
or local statute; provided, however, that the Employee does not release or
discharge the Released Parties from any of the Company's obligations to him
under the Employment Agreement or Losses arising under the ADEA which arise
after the date on which the Employee executes this general release. It is
understood that nothing in this general release is to be construed as an
admission on behalf of the Released Parties of any wrongdoing with respect to
the Employee, any such wrongdoing being expressly denied.
The Employee represents and warrants that he fully understands the terms of
this general release, that he has been encouraged to seek, and has sought, the
benefit of advice of legal counsel, and that he knowingly and voluntarily, of
his own free will, without any duress, being fully informed, and after due
deliberation, accepts its terms and signs below as his own free act. Except as
otherwise provided herein, the Employee understands that as a result of
executing this general release, he will not have the right to assert that the
Company or any other of the Released Parties unlawfully terminated his
employment or violated any of his rights in connection with his employment or
otherwise.
The Employee further represents and warrants that he has not filed, and
will not initiate, or cause to be initiated on his behalf any complaint, charge,
claim, or proceeding against any of the Released Parties before any federal,
state, or local agency, court, or other body relating to any claims barred or
released in this General Release thereof, and will not voluntarily participate
in such a proceeding. However, nothing in this general release shall preclude or
prevent the Employee from filing a claim, which challenges the validity of this
general release solely with respect to the Employee's waiver of any Losses
arising under the ADEA. Employee shall not accept any relief obtained on his
behalf by any government agency, private party, class, or otherwise with respect
to any claims covered by this General Release.
The Employee may take twenty-one (21) days to consider whether to execute
this general release. Upon the Employee's execution of this general release, the
Employee will have seven (7) days after such execution in which he may revoke
such execution. In the event of revocation, the Employee must present written
notice of such revocation to____________. If seven (7) days pass without receipt
of such notice of revocation, this general release shall become binding and
effective on the eighth (8th) day after the execution hereof (the "Effective
Date").
The Parties shall initial each page of this Agreement
___________________________________________ ______________________________
_________________________ _______________________
Execution Date
State of
)
ss.
County of )
______________
On this ______ day of ______________ in the year 200__ before me, the
undersigned, personally appeared ___________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument, and acknowledged to me that he
executed the same in his capacity as an individual, and that by his signature on
the instrument he executed such instrument, and that such individual made such
appearance before the undersigned.
____________________________________
_________________________________
Notary Public
