EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of May 3, 2004, is entered
into between Jarden Corporation, a Delaware corporation (the "Company") and
Xxxxxxx XxXxxxxxx, (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to continue to employ the Employee and to be
assured of her services on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to continue such employment on such terms
and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, the Company and the Employee hereby agree as follows:
1. Employment. The Company hereby employs the Employee as Senior Vice
President of the Company, and the Employee accepts such employment, upon the
terms and subject to the conditions set forth in this Agreement. Notwithstanding
the foregoing, it is understood and agreed that the Employee from time to time
may (a) be appointed to additional offices or to different offices than those
set forth above provided they are within a fifty mile radius of the current Rye,
NY location, (b) perform such duties other than those set forth above, and/or
(c) relinquish one or more of such offices or other duties, as may be mutually
agreed by and between the company and the Employee; and, that no such action
shall be deemed or construed to otherwise amend or modify any of the remaining
terms or conditions of this Agreement.
2. Term. The term of this Agreement shall be two (2) years, commencing on
the date hereof and ending on the second anniversary of such date (the "Initial
Term"), subject to earlier termination pursuant to the provisions of Section 10.
The employment of the Employee shall automatically continue hereunder following
the Initial Term for the successive one (1) year periods (the "Renewal Terms")
unless the Company or the Employee gives written notice to the other at least
(90) ninety days prior to the end of the Initial Term. Subsequent to the Initial
Term, the employment of the Employee hereunder may be terminated at the end of
any Renewal Term by delivery by either the Employee or the Company of a written
notice to the other part at least (90) ninety days prior to the end of any
Renewal Term.
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3. Duties. During the term of this Agreement, the Employee shall, subject
to the provisions of Section 1 above, serve as Senior Vice President of the
Company and shall perform all duties commensurate with her position that may be
assigned to him by the Chief Financial Officer of the Company and/or by the
Board of Directors of the Company consistent with such position. The Employee
shall devote substantially all of her time and energies to the business and
affairs of the Company and shall use her best efforts, skills and abilities to
promote the interests of the Company as necessary to diligently and competently
perform the duties of her position.
4. Compensation and Benefits.During the term of this Agreement, the Company
shall pay to the Employee, and the Employee shall accept from the Company, as
compensation for the performance of services under this Agreement and the
Employee's observance and performance of all of the provisions hereof, a salary
of $200,000 per year (the "Base Compensation"). The Base Compensation shall be
reviewed annually and shall be increased by a minimum of the Consumer Price
Index. In addition, the Employee shall be eligible to participate in the
Company's bonus program for management. The bonus program shall give the
Employee the opportunity to earn up to 30% of paid Base Compensation if the
Company achieves its budgeted Earnings Per Share and up to 60% of paid Base
Compensation if the Company achieves Earnings Per Share 10% higher than budget.
It is anticipated that the nature and amounts of the financial performance
benchmarks and targeted percentages will be amended annually in accordance with
Jarden's overall incentive compensation plan. Additionally, Employee may
receive, at the Company's sole discretion, a bonus of up to 50% of Base
Compensation (subject to adjustment annually) for services specifically
performed or exceptional performance related to other corporate development,
financing or special project activity undertaken by the Company in any year.
The Employee's Base Compensation and any bonus shall be payable in accordance
with the normal payroll practices of the Company and shall be subject to
withholding for applicable taxes and other amounts. During the term of this
Agreement, the Employee shall be entitled to participate in or benefit from, in
accordance with the eligibility and other provisions thereof, such medical,
insurance, and other fringe benefit plans or policies as the Company may make
available to, or have in effect for, its personnel with commensurate duties from
time to time. The Company retains the rights to terminate or alter any such
plans or policies from time to time. The Employee shall also be entitled to
vacations, sick leave and other similar benefits in accordance with policies of
the Company from time to time in effect for personnel with commensurate duties.
5. Reimbursement of Business Expenses. During the term of this Agreement,
upon submission of proper invoices, receipts or other supporting documentation
satisfactory to the Company and in specific accordance with such guidelines as
may be established from time to time by the Company, the Employee shall be
reimbursed by the Company for all reasonable business expenses actually and
necessarily incurred by the Employee on behalf of the Employer in connection
with the performance of services under this Agreement.
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6. Representation of Employee. Except as set forth in Paragraph 3 hereof,
the Employee represents and warrants that that she is not party to, or bound by,
any agreement or commitment, or subject to any restriction, including but not
limited to agreements related to previous employment containing confidentiality
or non compete covenants, which in the future may have a possibility of
adversely affecting the business of the Company or the performance by the
Employee of her material duties under this Agreement.
7. Confidentiality. (For purposes of this Section 7, all references to the
Company shall be deemed to include the Company's subsidiary corporations.)
(a) Confidential Information. The Employee acknowledges that she will
have knowledge of, and access to, proprietary and confidential information of
the Company, including, without limitation, inventions, trade secrets, technical
information, know-how, plans, specifications, methods of operations, financial
and marketing information and the identity of customers and suppliers
(collectively, the "Confidential Information"), and that such information, even
though it may be contributed, developed or acquired by the Employee, constitutes
valuable, special and unique assets of the Company developed at great expense
which are the exclusive property of the Company. Accordingly, the Employee shall
not, either during or subsequent to the term of this Agreement, use, reveal,
report, publish, transfer or otherwise disclose to any person, corporation or
other entity, any of the Confidential Information without the prior written
consent of the Company, except to responsible officers and employees of the
Company and other responsible persons who are in a contractual or fiduciary
relationship with the Company and who have a need for such information for
purposes in the best interests of the Company, and except for such information
which is or becomes of general public knowledge from authorized sources other
than the Employee. The Employee acknowledges that the Company would not enter
into this Agreement without the assurance that all such confidential and
proprietary information will be used for the exclusive benefit of the Company.
(b) Return of Confidential Information. Upon the termination of
Employee's employment with the Company, the Employee shall promptly deliver to
the Company all drawings, manuals, letters, notes, notebooks, reports and copies
thereof and all other materials relating to the Company's business.
8. Noncompetition. (For purposes of this Section 8, all references to the
Company shall be deemed to include the Company's subsidiary corporations).
During the term set forth below, the Employee will not utilize her special
knowledge of the business of the Company and her relationships with customers
and suppliers of the Company to compete with the Company. During the term of
this Agreement and for a period of twelve (12) months after the expiration or
termination of this Agreement, the Employee shall not engage, directly or
indirectly or have an interest, directly or indirectly, anywhere in the United
States of America or any other geographic area where the Company does business
or in which its products are marketed, alone or in association with others, as
principal, officer, agent, employee, capital, lending of money or property,
rendering of services or
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otherwise, in any business directly competitive with or similar to that engaged
in by the Company (it being understood hereby, that the ownership by the
Employee of 2% or less of the stock of any company listed on a national
securities exchange shall not be deemed a violation of this Section 8). During
the same period, the Employee shall not, and shall not permit any of her
employees, agents or others under her control to, directly or indirectly, on
behalf of himself or any other person, (i) call upon, accept business from, or
solicit the business of any person who is, or who had been at any time during
the preceding two years, a customer of the Company or any successor to the
business of the Company, or otherwise divert or attempt to divert any business
from the Company or any such successor, or (ii) directly or indirectly recruit
or otherwise solicit or induce any person who is an employee of, or otherwise
engaged by, the Company or any successor to the business of the Company to
terminate her or her employment or other relationship with the Company or such
successor.
9. Noninterference. At any time during the Initial Term or a Renewal Term,
and for the two (2) year period immediately thereafter, the Employee shall not
interfere with any of the Company's relationships with any party, including any
party who, at any time during the Initial Term or a Renewal Term, was an
employee, contractor, supplier or customer of of the Company. At any time during
or after the Initial Term and any Renewal Terms, the Employee shall not make
public statements which may negatively impact the Company or any of its
shareholders, directors, officers, employees or agents with respect to the
customers, suppliers, products, personnel or business of the Company. For
purposes of this Section 9, "interfere" shall mean intentional or grossly
negligent acts or conduct that is reasonably likely to hamper, hinder or disturb
the relationships between the Company and any applicable party.
10. Remedies. The restrictions set forth in Section 7 and 8 are considered
by the parties to be fair and reasonable. The Employee acknowledges that the
Company would be irreparably harmed and that monetary damages would not provide
an adequate remedy in the event of a breech of the provisions of Section 7 or 8.
Accordingly, the Employee agrees that, in addition to any other remedies
available to the Company, the Company shall be entitled to seek injunctive and
other equitable relief to secure the enforcement of these provisions. If any
provisions of Sections 7, 8 or 9 relating to the time period, scope of
activities or geographic area of restrictions is declared by a court of
competent jurisdiction to exceed the maximum permissible time period, scope of
activities or geographic area, as the case may be, shall be provisions of
Section 7, 8 or 9 other than those described in the preceding sentence are
adjudicated to be invalid or unenforceable, the invalid or unenforceable
provisions shall be deemed amended (with respect only to the jurisdiction in
which such adjudication is made) in such manner as to render them enforceable
and to effectuate as nearly as possible the original intentions and agreement of
the parties.
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11. Termination. This Agreement may be terminated prior to the expiration
of the term set forth in Section 2 upon the occurrence of any of the events set
forth in, and subject to the terms of, this Section 11.
(a) Death. This Agreement will terminate immediately and automatically
upon the death of the Employee.
(b) Disability. This Agreement may be terminated at the Company's
option, immediately upon written notice to the Employee, if the Employee shall
suffer a permanent disability. For the purpose of this Agreement, the term
"permanent disability" shall mean the Employee's inability to perform her duties
under this Agreement for a period of 120 consecutive days or for an aggregate of
180 days, whether or not consecutive, in any twelve month period, due to
illness, accident or any other physical or mental incapacity, as reasonably
determined by the Company. In the event of termination for disability, the
Employee will also be entitled to receive medical and long term disability
benefits generally available to other disabled employees of the Company.
(c) Cause. This Agreement may be terminated at the Company's option,
immediately upon written notice to the Employee, upon: (i) breach by the
Employee of any material provision of this Agreement not cured within ten (10)
days after written notice of such breach is given by the Company to the
Employee; (ii) gross negligence or willful misconduct of the Employee in
connection with the performance of her duties under this Agreement, or
Employee's willful refusal to perform any of her duties or responsibilities
required pursuant to this Agreement; or (iii) fraud, criminal conduct or
embezzlement by the Employee.
(d) Without Cause. This Agreement may be terminated pursuant to the
terms of Section 2 or on thirty (30) days written notice (the thirtieth day
following such notice being herein sometimes called the "Termination Date") by
the Company without cause, subject to the following provision.
If the Employee's employment is terminated by the Company without
Cause, or upon Disability, the Employee shall receive an amount (the "Severance
Amount") equal to the sum of the following: (i) one year's Base Compensation;
plus (ii) a portion of the target bonus for the year in which the Employee's
employment was terminated ("Termination Year") calculated as the target
percentage multiplied by the Base Compensation actually earned from January 1st
of the Termination Year until the Termination Date; plus (iii) continuation of
health insurance and other benefits for one year at same cost as the Employee
currently contributes; plus, (iv) full vesting of any outstanding stock options
and the lapsing of any restrictions over any restricted shares owned by the
Employee.
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The cash portion of the Severance Amount shall be paid to the Employee
as promptly as practicable after the date of Termination and in no event later
than ten (10) days after termination.
Payment of the Severance Amount shall be in lieu of all other
financial obligations of the Company to the Employee and all other benefits in
this Agreement shall cease as of the date of termination. The Employee shall
have no obligation to seek other employment or otherwise mitigate damages
hereunder. For the avoidance of doubt, it is understood that the Company will
pay all amounts owed to Employee prior to the date of termination, including any
incentive compensation owed to employee for the prior year if still unpaid at
the date of termination and the termination occurred after the fiscal year end..
Notwithstanding anything in the incentive compensation plan, Employee need not
be employed at the date the incentive payments are made to be eligible for this
payment. Payment of the severance amount is also contingent upon Employee
executing Jarden's standard release form which includes a covenant by the
Employee not to xxx, a confidentiality agreement and a waiver and release of all
further potential claims against the Company by the Employee, among other
things.
12. Miscellaneous
(a) Survival. The provisions of Sections 7, 8, 9, 10 and 12 shall
survive the termination of this Agreement.
(b) Entire Agreement.This Agreement, sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof.
(c) Modification. This Agreement may not be modified or terminated
orally; and no modification, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the party
against whom the same is sought to be enforced; provided, however, that the
Employee's compensation may be increased at any time by the Company without in
any way affecting any of the other terms and conditions of this Agreement, which
in all other respects shall remain in full force and effect.
(d) Waiver. Failure of a party to enforce one or more of the
provisions of this Agreement or to require at any time performance of any of the
obligations hereof shall not be construed to be a waiver of such provisions by
such party nor to in any way affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, not to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
(e) Successors and Assigns. Neither party shall have the right to
assign this Agreement, or any rights or obligations hereunder, without the
consent of the other party.
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(f) Communications. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been given at the time personally delivered or when mailed in any United
States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the recipient's address set forth below, or to such
other address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
To the Company: Xxxxxx Xxxxxxxxxxx
Xxxxx X-000
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
To the Employee: Xxxxxxx XxXxxxxxx
00 Xxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
(g) Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall not affect the validity and enforceability of the
other provisions of this Agreement and the provision held to be invalid or
unenforceable shall be enforced as nearly as possible according to its original
terms and intent to eliminate such invalidity or unenforceability.
(h) Jurisdiction; Venue. This Agreement shall be subject to the
exclusive jurisdiction of the courts of New York County, New York. Any breach of
any provision of this Agreement shall be deemed to be a breach occurring in the
State of New York and the parties irrevocably and expressly agree to submit to
the jurisdiction of the courts of the State of New York or the Federal Courts
having concurrent geographic jurisdiction, for the purpose of resolving any
disputes among them relating to this Agreement or the transactions contemplated
by this Agreement.
(i) Governing Law. This Agreement is made and executed and shall be
governed by the laws of the State of New York, without regard to the conflicts
of law principles thereof.
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IN WITNESS WHEREOF, each of the parties hereto have duly executed this
Agreement as of the date set forth above.
JARDEN CORPORATION
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
Vice Chairman and CFO
/s/ Xxxxxxx XxXxxxxxx
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Xxxxxxx XxXxxxxxx
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