EXHIBIT 10.37
Execution Copy
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement"), dated as
of July 21, 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 Xxxxx X.
Xxxxxxx, Esq. (the "Executive").
Recitals
The Company desires to employ the Executive and the Executive
desires to be employed by the Company upon the terms and conditions set forth
herein.
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 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.
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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; (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.
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 employed as the vice president, general counsel and secretary of the
Company, and the Executive hereby accepts such employment.
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.
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4. Positions, Responsibilities and Duties.
4.1. Positions. During the Term of Employment, the Executive
shall be employed and serve as the vice president, general counsel and secretary
of the Company. In such position, the Executive shall have the duties,
responsibilities and authority normally associated with the office and position
of vice-president, general counsel and secretary of a publicly-traded
corporation. The Executive shall report to the Board, the chief executive
officer and the chief financial officer. All other attorneys of the Company
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 legal issues 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.
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 $225,000, 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
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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 5.5
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 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.
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
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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": (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 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 arrangement. 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
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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": (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 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
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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 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.
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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. 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 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
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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
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
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.
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 Financial Officer
Constar International Inc.
00
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
To the Executive: Xxxxx X. Xxxxxxx, Esq.
000 Xxxxxxx Xxxx
Xxxxxxx, 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.
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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 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.
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/ Xxxxx X. Xxxx
---------------------------------------------
By: Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
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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 Executive Employment Agreement,
dated as of July __, 2003, (the "Employment Agreement") by and between Xxxxx X.
Waksmann, Esq. (the "Executive") and Constar International Inc. (the "Company"),
the Executive 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 Executive 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 Executive'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 Executive 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 Executive 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 Executive, any such wrongdoing being expressly denied.
The Executive 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 Executive 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.
14
The Executive 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 Executive from filing a claim, which challenges the validity of this
general release solely with respect to the Executive's waiver of any Losses
arising under the ADEA. The Executive 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 Executive may take twenty-one (21) days to consider whether to execute
this General Release. Upon the Executive's execution of this general release,
the Executive will have seven (7) days after such execution in which he may
revoke such execution. In the event of revocation, the Executive must present
written notice of such revocation to the Company's Chief Executive Officer. 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').
INTENDING TO BE LEGALLY BOUND, I hereby set my hand below:
_______________________
Xxxxx X. Xxxxxxx
Dated:_________________
State of ________________ )
County of _______________ ) ss.
On this ______ day of ______________ in the year 200__ before me, the
undersigned, personally appeared Xxxxx X. Xxxxxxx, 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
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