Exhibit 10.2
OFFICER AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 1st day of
October, 2007 ("Effective Date"), by and between Silgan Holdings Inc.
("Company") and Xxxx X. Xxxxxxxx ("Officer"). For purposes of this Agreement,
the term "Company" shall include the subsidiaries of Silgan Holdings Inc. listed
on Exhibit A hereto as well as all future subsidiaries of Silgan Holdings Inc.
RECITALS
--------
A. Company is engaged in the business of developing, creating,
manufacturing and selling, among other things, (i) metal containers for human
and pet food, (ii) plastic packaging solutions for customers' products and (iii)
metal, plastic and composite closures for food and beverage products
(collectively, the "Business"). Company's headquarters and principal place of
business are located in, and this Agreement is being signed in, Stamford,
Connecticut.
B. Officer is a senior officer of Company who is involved in, and has
significant responsibilities and confidential information regarding, Company's
Business.
C. Company desires that Officer sign this Agreement.
D. Officer desires to sign this Agreement and be eligible for
severance as provided herein.
NOW, THEREFORE, in consideration of the above and of the mutual
covenants and agreements hereinafter set forth, Officer and Company agree as
follows:
1. Confidential Information.
------------------------
(a) Officer agrees to keep secret and confidential, and not to use or disclose
to any third-parties, except as directly required for Officer to perform
Officer's employment responsibilities for Company, any of Company's
confidential, proprietary and/or trade secret information concerning
Company's Business learned, developed or otherwise acquired by Officer
during the course of, or in connection with, Officer's employment with
Company ("Confidential Information"). Confidential Information includes,
among other things, Company's confidential information regarding its
customers and prospective customers (including but not limited to their
needs, preferences, requirements, and likes and dislikes), costs, pricing,
profitability, sales and marketing strategies, pricing policies, commission
structures, contract terms and conditions, operational methods, strategic
plans, nonpublic personnel-related information, nonpublic training
materials, internal financial information, research and development plans
and activities, and the like. Officer acknowledges that Company exercises
reasonable efforts to maintain the secrecy and confidentiality of
Confidential Information, and Officer agrees to treat Confidential
Information as
-1-
secret and confidential so long as such information is not generally
known to the public.
(b) Officer acknowledges that any and all notes, records, sketches,
computer diskettes, nonpublic training materials, recordings and other
documents obtained by or provided to Officer, or otherwise made,
produced or compiled during the course of Officer's employment with
Company, which contain any Confidential Information of Company,
regardless of the type of medium in which it is preserved, are the
sole and exclusive property of Company and shall be given to Company
(with no copies retained) upon Officer's termination of employment or
on demand at any time by Company.
2. Restrictions during Employment. Officer agrees that throughout Officer's
------------------------------
employment with Company, Officer shall (a) faithfully render such services
as may be delegated to Officer by Company; (b) devote Officer's entire
business time, good faith, best efforts, ability, skill and attention to
Company's Business; (c) not, directly or indirectly, compete, plan or
prepare to compete, or assist anyone else in competing or in planning or
preparing to compete, against Company; and (d) follow and act in accordance
with all of Company's rules, policies and procedures with respect to the
operation of Company.
3. Post-Termination Restrictions.
-----------------------------
(a) Officer recognizes that (1) Company has spent substantial money, time
and effort over the years in developing and solidifying its
relationships with its customers and in developing its Confidential
Information; (2) long-term customer relationships often can be
difficult to develop and require a significant investment of time,
effort and expense; and (3) Company pays its high-level personnel such
as Officer to, among other things, develop and preserve Confidential
Information, customer goodwill, and customer loyalty for and on behalf
of Company. Accordingly, Officer agrees that for a period of (x) one
(1) year immediately following Officer's last day of employment with
Company if such employment is terminated by Company with cause or by
the Officer or (y) one (1) year immediately following Officer's last
day of employment with Company if such employment is terminated by
Company without cause, Officer shall not, directly or indirectly, on
Officer's behalf or on behalf of any other person, firm, corporation,
partnership or other entity, compete against Company by:
(i) providing, or supervising, managing or consulting in the
provision of, any services or products that are competitive with
Company's Business;
(ii) becoming employed by, or providing services under contract or
otherwise for, any company providing services or products in
competition with Company's Business;
(iii) providing, or supervising, managing or consulting in the
provision of, any work or activity that involves a product,
process, apparatus, service or
-2-
development utilized by the Company in its Business to any
customer of Company with whom Officer or anyone under Officer's
direct supervision dealt at any time during Officer's last two
(2) years of employment with Company or about whom Officer
acquired any Confidential Information while Officer was employed
by Company;
(iv) soliciting, enticing, inducing, hiring, employing or seeking to
employ any salesperson, engineer, technician, manager or
executive-level employee of Company, who was employed by Company
during Officer's last six (6) months of employment with the
Company, to provide any services in competition with Company's
Business.
(b) The post-termination restrictions in Sections 3(a)(i) and (ii) shall
apply only in the United States, Canada, and such other countries
where Company is engaged in the Business, or is actively planning to
engage in the Business, as of the last day of Officer's employment
with Company. Officer acknowledges and agrees that the
post-termination restrictions in Sections 3(a)(i) through (iv) are
reasonable and necessary to protect Company's legitimate protectible
interests because, among other reasons, (i) of the narrow range of the
activities prohibited; (ii) of the Confidential Information to which
Officer has and will have access, which Officer agrees can have a
useful competitive life of more than two years; (iii) of Officer's
high-level position in Company, which provides Officer with access to
Company's most sensitive Confidential Information and access to and
influence regarding Company's most valuable and sensitive customer
relationships; (iv) there are many other areas and businesses in
which, and companies for which, Officer could work in view of
Officer's background, and the restraints contained herein therefore
should not impose any undue hardship on Officer. Officer further
acknowledges and agrees that the restrictions in Subpart 3(a)(iv) are
reasonable because (1) Officer, as a high-level employee, is in a
position to identify, through Confidential Information, Company
employees most integral and/or critical to the success of Company's
Business; (2) such restrictions protect against the possible loss or
misuse of Confidential Information by other Company employees; (3)
such restrictions protect the customer relationships and/or goodwill
associated with other Company employees; and (4) loss of one or more
other Company employees, in addition to Officer, would increase the
risk of loss or misuse of Confidential Information and/or customer
relationships.
4. Intellectual Property.
---------------------
(a) Officer agrees that any and all Confidential Information, ideas,
inventions, discoveries, patents, patent applications, technology,
improvements, know-how, copyrights, tangible works of expression,
derivative works, trademarks, service marks, trade secrets, and the
like ("Intellectual Property"), which are developed, conceived,
created, discovered, learned, produced and/or otherwise generated by
Officer, whether individually or otherwise, during the time that
Officer is employed by Company, whether before or after execution of
this Agreement, whether or not
-3-
during working hours, that relate to: (a) current and anticipated
businesses and/or activities of Company; (b) Company's current and
anticipated research or development; or (c) any work performed by
Officer for Company are and shall be the sole and exclusive property
of Company, and Company shall own any and all worldwide right, title
and interest in, to and under such Intellectual Property. Officer
hereby agrees to assign, and assigns, to Company any and all worldwide
right, title and interest in, to and under such Intellectual Property.
Officer hereby agrees, whenever requested to do so by Company, at
Company's expense, to execute any and all applications, assignments or
other instruments which Company deems desirable or necessary to
protect such interests. In the event that Company requests Officer to
perform any of the foregoing services following termination of
Officer's employment with Company, Company agrees to compensate
Officer for such services at a rate per hour equal to the base salary
that Officer received from Company at the time of Officer's
termination. In addition, Company shall reimburse Officer for all
related reasonable out-of-pocket expenses incurred in rendering such
services. Officer further agrees to make a complete written disclosure
to Company of any Intellectual Property, when and as it arises, is
conceived or is reduced to practice, specifically pointing out the
features or concepts that Officer believes to be new or different.
(b) Officer agrees that any Intellectual Property that is conceived,
developed, or reduced to practice by Officer within one (1) year
immediately following the termination of Officer's employment with
Company that relates to the actual or foreseeable Business of Company
will be presumed to have been made during the term of Officer's
employment and will be the sole property of Company, unless Officer
presents sufficient evidence to Company satisfactory to rebut the
presumption.
5. Non-Waiver of Rights. Company's failure to enforce at any time any of the
--------------------
provisions of this Agreement or to require at any time performance by
Officer of any of the provisions hereof shall in no way be construed to be
a waiver of such provisions or to affect either the validity of this
Agreement, or any part hereof, or the right of Company thereafter to
enforce each and every provision in accordance with the terms of this
Agreement.
6. Invalidity of Provisions. If any provision of this Agreement is adjudicated
------------------------
to be invalid or unenforceable under applicable law in any jurisdiction,
the validity or enforceability of the remaining provisions thereof shall be
unaffected as to such jurisdiction and such adjudication shall not affect
the validity or enforceability of such provisions in any other
jurisdiction. To the extent that any provision of this Agreement is
adjudicated to be invalid or unenforceable because it is overbroad, that
provision shall not be void but rather shall be limited only to the extent
required by applicable law and enforced as so limited.
7. Assignments. This Agreement shall be freely assignable by Company to and
-----------
shall inure to the benefit of, and be binding upon, any other entity which
shall succeed to the Business. Being a contract for personal services,
neither this Agreement nor any rights hereunder shall be assigned by
Officer.
-4-
8. Company's Right to Recover Costs and Fees. If Officer breaches or threatens
-----------------------------------------
to breach the Agreement, Officer shall be liable for any attorneys' fees
and costs incurred by Company in enforcing its rights hereunder.
9. Termination.
-----------
(a) Officer's employment with Company is terminable by Company, or by
Officer, without cause, at any time upon notice to the other party.
Company also may terminate Officer's employment with Company
immediately for cause at any time. If Officer's employment under this
Agreement is terminated, for any reason, with or without cause,
Company shall have no liability whatsoever to Officer other than to
pay Officer the compensation due through Officer's last day of
employment (subject to Subsection (b) below), and such termination
shall not diminish or affect in any way Officer's post-employment
duties and obligations under this Agreement.
(b) Officer acknowledges that Officer is, and at all times will be, an
employee-at-will of Company and nothing herein shall be construed to
alter or affect such employee-at-will status. Without limiting the
generality of the foregoing, as additional consideration for Officer's
execution of this Agreement, in the event that Company terminates
Officer's employment without cause, Company hereby agrees to provide
Officer with (i) a payment of an amount equal to the sum of (1) one
(1) year of Officer's normal base salary at Officer's then annual
salary rate plus (2) one year annual bonus calculated at thirty
percent (30%) of such base salary, less applicable withholdings (the
"Salary Payment"), with payment of the Salary Payment to be made in
one lump sum on the effective date of termination, and (ii) a payment
of an amount equal to the bonus Officer would have received under
Company's applicable bonus plan for Officer for the year during which
Officer's employment terminated had Officer's employment not so
terminated, but pro rated based on the number of days Officer was
employed by Company during such year, less applicable withholdings,
(the "Bonus Payment" and together with the Salary Payment, the
"Severance Payment"), with payment of the Bonus Payment to be made
during the first quarter of the year following the year during which
Officer's employment terminated. Officer understands, acknowledges and
agrees that no Severance Payment shall be due in the event that
Company terminates Officer's employment for cause or Officer
terminates his employment.
(c) For purposes of this Agreement, "cause" shall mean and include
Officer's (i) act of fraud, embezzlement, theft, bribery or any other
act of comparable dishonesty, disloyalty or breach of trust against
the Company or any other material violation of law that occurs during
or in the course of Officer's employment with Company; (ii) damage to
Company's assets; (iii) improper use or disclosure of Company's
confidential information; (iv) breach of Officer's obligations under
this Agreement; (v) engagement in, or the planning of or preparation
for, any competitive activity which would constitute a breach of
Officer's duty of loyalty or of Officer's obligations under this
Agreement; (vi) breach of any of Company's policies; (vii) willful and
continued failure to perform Officer's duties for Company (other than
as
-5-
a result of incapacity due to physical or mental illness); or (viii)
willful conduct that is injurious to Company, monetarily or otherwise.
10. Amendments. No modification or amendment of any of the provisions of this
----------
Agreement shall be effective unless in writing specifically referring
hereto, and signed by the parties hereto. This Agreement supersedes all
prior agreements and understandings between Officer and Company to the
extent that any such agreements or understandings conflict with the terms
of this Agreement.
11. Choice of Forum and Governing Law. The parties acknowledge and recognize
----------------------------------
the substantial contacts that they have and will continue to have with
Connecticut. Such contacts may include the following: Company has its
headquarters in Connecticut; Officer will perform certain employment duties
in Connecticut; Officer will deal with, report directly or indirectly to
and/or receive strategic and/or management guidance or direction from
executive-level personnel based in Connecticut; Officer will attend
meetings in Connecticut at which Confidential Information may be disclosed;
Officer will receive or be sent Confidential Information originating from
Company in Connecticut; this Agreement was formed in, accepted, and
executed in Connecticut; and the parties' expectations under this Agreement
are based on Connecticut law. In light of the parties' substantial contacts
with the State of Connecticut, and their significant interest in ensuring
that disputes as to the validity and enforceability of this Agreement are
resolved on a uniform basis, the parties agree that: (a) any litigation
involving any noncompliance with or breach of the Agreement, or regarding
the interpretation, validity and/or enforceability of the Agreement, shall
be filed and conducted exclusively in Stamford, Connecticut; and (b) the
Agreement shall be interpreted in accordance with and governed by the laws
of the State of Connecticut, without regard for any conflict of law
principles.
12. Company's Right to Injunctive Relief. In the event of a breach or
------------------------------------
threatened breach of any of Officer's duties and obligations under the
terms and provisions of Sections 1, 2, 3, 4 or 11 hereof, Company shall be
entitled, in addition to any other legal or equitable remedies it may have
in connection therewith (including any right to damages that it may
suffer), to temporary, preliminary and permanent injunctive relief
restraining such breach or threatened breach. Officer hereby expressly
acknowledges that the harm which might result to the Business as a result
of any noncompliance by Officer with any of the provisions of Sections 1,
2, 3, 4 or 11 would be largely irreparable. Officer specifically agrees
that if there is a question as to the enforceability of any of the
provisions of Sections 1, 2, 3, 4 or 11 hereof, Officer will not engage in
any conduct inconsistent with or contrary to such Sections until after the
question has been resolved by a final judgment of a court of competent
jurisdiction. Any time during which Officer violates any restrictions on
Officer under this Agreement shall not count toward satisfying the time
during which such restrictions shall apply.
13. Future Employment. Officer shall disclose the existence of this Agreement
-----------------
to any new employer that offers products or services that compete with the
Business. Officer shall not, during or after employment with Company, make
any comments or other communications disparaging the goodwill or reputation
of Company, its employees or Business. Officer consents to Company
informing any subsequent employer of Officer, or any entity which
-6-
Company in good faith believes is, or is likely to be, considering
employing Officer, of the existence and terms of this Agreement.
14. Transfers. This Agreement shall continue and be in full force and effect
---------
without re-execution in the event Officer is employed by Company in another
position or location.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, OFFICER IS HEREBY CERTIFYING THAT
OFFICER (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE
EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS
HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS
OFFICER HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS TO ALL
SUCH QUESTIONS; AND (D) UNDERSTANDS OFFICER'S RIGHTS AND OBLIGATIONS UNDER THE
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the Effective Date first above written.
/s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Officer: Xxxx X. Xxxxxxxx
-----------------------------------
Address: 3N446 Xxxxx Xxxxxxx Xxxxxx Xxxx
-----------------------------------
Xx. Xxxxxxx, XX 00000
-----------------------------------
SILGAN HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
-7-
EXHIBIT A
Subsidiaries of Silgan Holdings Inc.
Silgan Containers Corporation
Silgan Containers Manufacturing Corporation
Silgan LLC
Silgan Corporation
Silgan Can Company
Silgan Containers Lodi Manufacturing Corporation
Silgan Plastics Corporation
RXI Plastics, Inc.
Silgan Tubes Corporation
Silgan Tubes Holding Company
827599 Ontario Inc.
Silgan Plastics Canada Inc.
828745 Ontario Inc.
Xxxxxxxx Mexico, S.A. de X.X. de X.X.
Xxxxxxxx Investments, S.A. de X.X. de C.V.
Silgan Closures International Holding Company
Silgan Closures Holding Company
Silgan Closures Corporation
Silgan White Cap Americas LLC
Silgan Equipment Company
Silgan Closures Mexico, S.A. de C.V.
Silgan International Partnership C.V.
Silgan International Holdings B.V.
Silgan Europe Holdings B.V.
SWC Holdings Deutschland GmbH
-8-
Silgan White Cap Deutschland GmbH
Silgan White Cap Nordiska AB
SWC Holdings Italy S.r.l.
Silgan White Cap Italia S.r.l.
SWC Holdings Poland Sp. z o.o.
Silgan White Cap Polska Sp. z o.o.
Silgan White Cap GmbH
Silgan White Cap France S.A.S.
Silgan White Cap Holdings Spain S.L.
Silgan White Cap Espana S.L.
Silgan White Cap UK Limited
Silgan White Cap Hungary Packaging Limited Liability
Company
Silgan White Cap Belgium N.V.
Silgan White Cap Holdings Cyprus Limited
Silgan White Cap Ukraine LLC
Silgan White Cap Ambalaj Sanayi ve Ticaret A.S.
Silgan White Cap Investments, Inc.
Silgan White Cap South East Asia, Inc.
Silgan White Cap Properties, Inc.
SWC Holdings (Mauritius) Ltd.
Silgan White Cap (Shanghai) Co., Ltd.
Silgan White Cap de Venezuela, S.A.
SWC Holdings Brasil Participacoes Ltda.
Silgan White Cap Rus o.o.o
-9-
