Contract
EMPLOYMENT
AGREEMENT
dated as
of September 15, 2006, between Xxxxx
Plastics Corporation,
a
Delaware corporation (the “Company”),
and
the individual listed on Schedule 1 hereto (the “Employee”).
The
Employee is currently employed by the Company and possesses special and
particular knowledge of the business, products and operations of the Company
and
of the industry in which it operates. The Company and the Employee now desire
to
set forth in writing the terms of the Employee’s employment by the Company upon
the consummation of the Merger (as defined in the Agreement and Plan of Merger
(the “Merger
Agreement”),
dated
as of June 28, 2006, by and between BPC Holding Corporation, BPC Holding
Acquisition Corp. (“BPC”),
and
BPC Acquisition Corp.).
NOW,
THEREFORE, in consideration of the mutual covenants and obligations hereinafter
set forth, the parties hereto agree as follows:
1. Employment.
The
Company hereby employs the Employee, and the Employee hereby accepts such
employment by the Company, on the terms and subject to the conditions
hereinafter set forth.
1. Term.
Subject
to earlier termination as provided herein, the employment of the Employee
hereunder shall commence on and subject to the occurrence of the Closing Date
(as defined in the Merger Agreement) (the “Effective
Date”),
and
terminate on the December 31, 2011 (the “Expiration
Date”).
Such
period of employment is hereinafter referred to as the “Employment
Period.”
2. Duties.
1)
During
the Employment Period, the Employee initially shall be employed by the Company
at the position set forth on Schedule 1 hereto, and shall perform such duties
and services for the Company consistent with such position as may be from time
to time assigned to him by the persons having authority regarding such matters
at the Company.
(b) The
Employee shall perform his duties and services hereunder at the offices of
the
Company in Evansville, Indiana, during the Employment Period; provided,
however,
that
the Company may require the Employee to travel in connection with the
performance of such duties and services. Anything contained herein to the
contrary notwithstanding, if the Company requires the Employee to relocate
to a
city located outside of the 50 mile radius of Evansville, Indiana, and notifies
the Employee in writing that his continued employment by the Company is
conditional upon such relocation and the Employee refuses to so relocate, any
Termination of Employment of the Employee resulting therefrom, whether initiated
by the Company or the Employee, shall constitute a Termination Without Cause.
3. Time
to be Devoted to Employment.
Except
for vacations in accordance with the Company’s vacation policies and absences
due to temporary illness, during the Employment Period, the Employee shall
devote all of his business time, attention and energies to the performance
of
his duties under this Agreement. During the Employment Period, the Employee
shall not be engaged in any other business activity which, in the judgment
of
the Company,
conflicts
with the duties of the Employee under this Agreement, whether or not such
activity is pursued for gain, profit or other pecuniary advantage.
4. Compensation;
Reimbursement.
(a) Base
Salary.
During
the Employment Period, the Company shall pay to the Employee an annual base
salary as set forth in Schedule 1 hereto, which
shall be subject to review and, at the option of persons having authority
regarding such matters at the Company, subject to increase (such salary, as
the
same may be increased from time to time as aforesaid, being referred to herein
as the “Base
Salary”).
The
Base Salary shall be payable in such installments (but not less frequent than
monthly) as is the policy of the Company with respect to employees of the
Company at substantially the same level of employment as the Employee.
(b) Bonus.
During
the Employment Period, the Employee shall be entitled to participate in all
bonus and incentive programs of the Company (the “Programs”)
generally available from time to time to employees of the Company at
substantially the same level of employment as the Employee, such participation
to be in substantially the same manner as the participation therein by such
employees.
(c) Benefits.
During
the Employment Period, the Employee shall be entitled to such benefits as are
generally made available from time to time to other employees of the Company
at
substantially the same level of employment as the Employee.
(d) Reimbursement
of Expenses.
During
the Employment Period, the Company shall reimburse the Employee, in accordance
with the policies and practices of the Company in effect from time to time
with
respect to other employees of the Company at substantially the same level of
employment as the Employee, for all reasonable and necessary traveling expenses
and other disbursements incurred by him for or on behalf of the Company in
connection with the performance of his duties hereunder (such expenses being
referred to herein as “Reimbursable
Expenses”)
upon
presentation by the Employee to the Company of appropriate documentation
therefor.
5. Termination
of Employment.
(a) General.
The
Company may terminate the Employee’s employment hereunder at any time for any
reason. The Employee may terminate his employment hereunder pursuant to a
voluntary Termination or a Disability Termination. The Employee’s employment
shall terminate automatically upon his death. Any termination of the Employee’s
employment is referred to herein as a “Termination
of Employment.”
(b) Termination
Notice.
The
Company or the Employee may initiate a Termination of Employment in any manner
permitted hereunder by giving the other party written notice thereof (the
“Termination
Notice”).
(c) Termination
Date.
The
effective date (the “Termination
Date”)
of any
Termination of Employment shall be deemed to be the later of (i) the date on
which the Termination Notice is given and (ii) the date specified as the
effective date in the Termination Notice; provided,
however,
that in
the case of the Employee’s death, the Termination Date shall
be
his
date of death.
6. Termination
for Cause.
Any
Termination of Employment initiated by the Company upon the occurrence of an
event that constitutes Cause shall be a “Termination
for Cause.”
For
purposes of this Agreement, “Cause”
shall
mean the Employee’s (i) willful misconduct with respect to the business and
affairs of the Company or any subsidiary or affiliate thereof, insubordination
or willful neglect of duties (other than neglect due solely to the Employee’s
illness or other involuntary mental or physical disability), including the
Employee’s violation of any material Company policy, (ii) material breach of any
of the provisions of this Agreement or (iii) conviction for a crime involving
moral turpitude or fraud. In the event of a Termination for Cause, the
Termination Notice must state that the Termination of Employment is for
Cause.
7. Termination
Without Cause.
Any
Termination of Employment initiated by the Company (other than a Termination
for
Cause), the Employee’s death and a Disability Termination shall each be a
“Termination
Without Cause.”
8. Death
or Disability Termination.
Any
Termination of Employment resulting from the Employee’s Disability (as
hereinafter defined) shall be a Disability Termination. For purposes of this
Agreement, the term “Employee’s
Disability”
shall
mean the Employee’s illness or other involuntary physical or mental disability
which prevents the Employee from performing his duties for a period of 90 days
in any 360-day period. In the event of a Disability Termination, the Termination
Notice must state that the Termination of Employment is a Disability
Termination.
9. Other
Termination by the Employee.
Any
Termination of Employment initiated by the Employee (other than a Termination
of
Employment resulting from the Employee’s death or pursuant to Disability
Termination) shall be a “Voluntary
Termination.”
10. Effect
of Termination of Employment.
In the
event of a Termination of Employment, neither the Employee nor his estate or
beneficiaries shall have any further rights or claims against the Company under
this Agreement except the right to receive:
(a) the
portion of the Base Salary which accrued with respect to the period prior to
the
Termination Date but which remained unpaid as of the Termination Date;
(b) the
aggregate amount of Reimbursable Expenses which were incurred prior to the
Termination Date but which were not reimbursed by the Company as provided in
Section 5(d) prior to the Termination Date; and
(c) any
other
benefits, including, without limitation, any accrued vacation payable in
accordance with the policies of the Company from time to time in effect for
the
officers of the Company; and
provided,
however,
that if
the Termination of Employment is pursuant to a Termination Without Cause or
a
Resignation for Good Reason (as defined in paragraph (e) below), then, in
addition to the amounts computed pursuant to Sections 11(a) through 11(c),
the
Employee shall have the right to receive as severance compensation an amount
equal to the pro-rata portion of the
applicable
bonus provided for in Section 5(b) plus the greater of (A) 100% of one year’s
Base Salary (as of the Termination Date) to be paid until the later to occur
of
(x) the second anniversary of the Effective Date and (y) the first anniversary
of the Termination Date and (B) 1/12th of one year’s Base Salary (as of the
Termination Date) for each year (not to exceed 30 years in the aggregate) that
the Employee was employed by the Company (and its predecessors-in-interest),
the
amount referred to in clause (A) or (B), as the case may be, to be payable
at
the same times at which and in the same manner in which the Base Salary would
have been payable to the Employee had the Termination of Employment not occurred
(the amount payable by the Company to the Employee pursuant to this proviso
being hereinafter referred to as the “Severance
Compensation”);
provided further,
however,
in the
event that, at any time after the Expiration Date, there occurs a Termination
of
Employment pursuant to a Termination Without Cause, the Company shall pay the
Severance Compensation to the Employee as if the Expiration Date had not
occurred.
(d) Upon
the
termination of the Employee’s employment by reason of “retirement” (as defined
in the Company’s Health and Welfare Plan for Early Retirees (the “Retiree
Plan”)),
the
Employee (and his or her eligible spouse and dependents) shall be entitled
to
receive post-retirement medical insurance coverage pursuant to the terms of
the
Retiree Plan, for which the cost of premiums shall be paid by the Employee
(or
such spouse and/or dependents). In the event that the Retiree Plan is no longer
in effect (or if otherwise necessary for tax and legal purposes), the Company
shall make available equivalent coverage to the Employee (and such spouse and/or
dependents) at substantially the same cost to the Employee (and such spouse
and/or dependents) as would have been charged under the Retiree Plan as of
the
earlier of the date the Retiree Plan is terminated and the time of the
Employee’s retirement (“Equivalent
Retiree Coverage”);
provided,
however,
that
the Company may increase the premium charged to the Employee (and such spouse
and/or dependents) based on the increase in cost, if any, to provide the Retiree
Plan that may arise after the Employee’s retirement. The Company shall take all
action necessary to ensure that the Equivalent Retiree Coverage, if any, shall
be provided other than pursuant to the terms of a self-insured medical
reimbursement plan that does not satisfy the requirements of Section 105(h)(2)
of the Internal Revenue Code of 1986, as amended.
(e) For
purposes of this Section 11, “Resignation
for Good Reason”
means
the Employee’s resignation as a result of Employee’s reassignment to an office
location greater than 25 miles from the office location Employee utilized as
of
the Effective Date.
11. Nondisclosure
of Confidential Information.
The
Employee shall not, at any time during or after the Employment Period, (i)
disclose to any person, firm, corporation, association or other entity, except
as required by law, any Confidential Information (as hereinafter defined) for
any reason or purpose whatsoever or (ii) make use of any Confidential
Information for his own purpose or for the benefit of any other person, firm,
corporation, association or other entity except the Company or any subsidiary
or
affiliate thereof. For purposes of this Agreement, the term “Confidential
Information”
shall
mean any information concerning the business, clients or affairs of the Company
or any subsidiary or affiliate thereof, including, without limitation, any
technical or nontechnical data, formulae (including cost and/or pricing
formulae), devices, methods (including cost and/or pricing methods and operating
methods), techniques, processes, financial data (including marketing information
and strategies and personnel data) and lists of
actual
or
potential customers or suppliers; provided,
however,
that
Confidential Information shall not include (i) information which is in the
public domain at the time of receipt thereof by the Employee, (ii) information
which, after receipt thereof by the Employee, becomes part of the public domain
through no act or omission of the Employee and (iii) information which was
lawfully within the Employee’s possession prior to the initial commencement of
the Employee’s association with the Company or any subsidiary or affiliate
thereof.
12. Restrictive
Covenants.
2)
The
Employee acknowledges and recognizes that during the Employment Period he will
be privy to Confidential Information and further acknowledges and recognizes
that the Company would find it extremely difficult to replace the Employee.
Accordingly, in consideration of the premises contained herein and the
consideration to be received by the Employee hereunder (including, without
limitation, the Severance Compensation), without the prior written consent
of
the Company, the Employee shall not, at any time during the employer/employee
relationship between the Company and the Employee and for the period of time
beginning with the termination of such employer/employee relationship for any
reason (including by the Employee for Good Reason and or by the Company for
Cause) and the date on which the final payment of Severance Compensation would
have been made to the Employee by the Company if such termination had been
a
Termination Without Cause, (i) directly or indirectly engage in, represent
in
any way, or be connected with, any Competing Business directly competing with
the business of the Company or any subsidiary or affiliate thereof within any
state in which the Company or any such subsidiary or affiliate transacts
business, whether such engagement shall be as an officer, director, owner,
employee, partner, affiliate or other participant in any Competing Business;
(ii) assist others in engaging in any Competing Business in the manner described
in clause (i) above; (iii) induce or solicit individuals who are, or were at
any
time in the preceding twelve months, employees of the Company or any subsidiary
or affiliate thereof to terminate their employment with the Company or any
such
subsidiary or affiliate or to engage in any Competing Business, or hire, or
induce or solicit (or assist others to hire or induce or solicit) the hiring
of,
individuals then employed, or employed at any time in the preceding twelve
months, by the Company or any subsidiary thereof; or (iv) induce any entity
or
person with which the Company or any subsidiary or any affiliate thereof has
a
business relationship to terminate or alter such business relationship. As
used
herein, “Competing
Business”
shall
mean any business involving the sale of products in any city or county in any
state of the United States if such business or the products sold by it are
competitive, directly or indirectly, at the time of the Termination of
Employment with (A) the business of the Company, (B) any of the products
manufactured, sold or distributed by the Company or (C) any products or business
being developed or conducted by the Company.
(b) The
Employee understands that the foregoing restrictions may limit his ability
to
earn a livelihood in a business similar to the business of the Company or any
subsidiary or affiliate thereof, but he nevertheless believes that he has
received and will receive sufficient consideration and other benefits as an
employee of the Company and as otherwise provided hereunder to justify clearly
such restrictions which, in any event (given his education, skills and ability),
the Employee does not believe would prevent him from earning a living.
13. Right
to Inventions.
The
Employee shall promptly disclose, grant and assign to the Company for its sole
use and benefit any and all inventions, improvements, technical information
and
suggestions reasonably relating to the business of the Company or
any
subsidiary
or affiliate thereof (collectively, the “Inventions”)
which
the Employee may develop or acquire during the Employment Period (whether or
not
during usual working hours), together with all patent applications, letters
patent, copyrights and reissues thereof that may at any time be granted for
or
upon the Inventions. In connection therewith:
(a) the
Employee recognizes and agrees that the Inventions shall be the sole property
of
the Company, and the Company shall be the sole owner of all patent applications,
letters patent, copyrights and reissues thereof that may at any time be granted
for or on the Inventions;
(b) the
Employee hereby assigns to the Company any rights the Employee may have in
or
acquire to the Inventions;
(c) the
Employee shall, at the expense of the company, promptly execute and deliver
such
applications, assignments, descriptions and other instruments as may be
necessary or proper in the opinion of the Company to vest title to the
Inventions and any patent applications, patents, copyrights, reissues or other
proprietary rights related thereto in the Company and to enable it to obtain
and
maintain the entire right and title thereto throughout the world;
(d) the
Employee recognizes and agrees that the Inventions to the extent copyrightable
shall constitute works for hire under the copyright laws of the United States;
and
(e) the
Employee shall render to the Company, at its expense, all such assistance as
it
may require in the prosecution of applications for said patents, copyrights,
reissues or other proprietary rights, in the prosecution or defense of
interferences which may be declared involving any said applications, patents,
copyrights or other proprietary rights and in any litigation in which the
Company may be involved relating to the Inventions.
14. Notices.
All
notices or other communications which are required or permitted hereunder shall
be in writing and shall be deemed to have been given if (a) personally delivered
or sent by telecopier, (b) sent by nationally-recognized overnight courier
or
(c) sent by registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
if
to the
Employee, to the last known address on record at the Company.
if
to the
Company, to:
Xxxxx
Plastics Corporation
c/o
General Counsel
000
Xxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
or
to
such other address as the party to whom notice is to be given may have furnished
to each other party in writing in accordance herewith. Any such communication
shall be deemed to have been received (i) when delivered, if personally
delivered, sent by telecopier or sent by nationally-recognized, overnight
courier and (ii) on the third Business Day following the date on which the
piece
of mail containing such communication is posted, if sent by mail. As used
herein, the term “Business
Day”
means
a
day that is not a Saturday, a Sunday or a day on which banking institutions
in
the city to which the notice or communication is to be sent are not required
to
be open.
15. Entire
Agreement; Amendments.
This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior or contemporaneous
negotiations, correspondence, understandings and agreements between the parties
with respect thereto. This Agreement may be amended only by an agreement in
writing signed by both parties hereto.
16. Assignment;
Successors; Benefits of Agreement.
This
Agreement is personal in its nature and neither party hereto shall, without
the
consent of the other, assign or transfer this Agreement or any rights or
obligations hereunder. The provisions of this Agreement shall be binding upon
and inure to the benefit of the respective heirs, beneficiaries, executors
and
administrators and successors and permitted assigns of the parties hereto.
17. Waiver
of Breach.
A
waiver of any breach of any provision of this Agreement shall not constitute
or
operate as a waiver of any other breach of such provision or of any other
provision, and any failure to enforce any provision hereof shall not operate
as
a waiver of such provision or of any other provision.
18. Execution
in Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument.
19. Headings.
The
headings of sections in this Agreement are for convenience only, are not a
part
of this Agreement and shall not affect the construction of the provisions of
this Agreement.
20. Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Indiana without giving effect to principles of
conflicts of laws.
21. Enforceability.
In the
event that any provision of this Agreement is determined to be partially or
wholly invalid, illegal or unenforceable in any jurisdiction, then such
provision shall, as to such jurisdiction, be modified or restricted to the
extent necessary to make such provision valid, binding and enforceable, or
if
such provision cannot be modified or restricted, then such provision shall,
as
to such jurisdiction, be deemed to be excised from this Agreement; provided,
however,
that
the binding effect and enforceability of the remaining provisions of this
Agreement, to the extent the economic benefits conferred upon the parties by
virtue of this Agreement remain substantially unimpaired, shall not be affected
or impaired in any manner, and
any
such
invalidity, illegality or unenforceability with respect to such provisions
shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
22. Survival.
Sections 11 through 22, this Section 23 and the defined terms used in any
section referred to in this Section 23, shall survive the termination of the
Employee’s employment on the Termination Date and the expiration of this
Employment Agreement on the Expiration Date.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
XXXXX
PLASTICS CORPORATION
By:____________________________________
Name:
Title:
EMPLOYEE
By:_____________________________________
Xxxxx
X.
Xxxxxxxxxx
SCHEDULE
1
|
Employee
|
Xxxxx
X. Xxxxxxxxxx
|
|
Position
|
Executive
Vice President & Chief Financial Officer
|
|
[Office/Headquarters]
|
000
Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxx
|
|
Annual
Base Salary
|
$350,000
|
