Exhibit 10.4
CONSULTING AGREEMENT
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This Consulting Agreement (this "Agreement") is entered into as of
October 17, 2007 between AptarGroup, Inc., a Delaware corporation (the
"Company"), and Xxxx Xxxxxx Consulting GmbH (the "Consultant").
WHEREAS, the Company desires to obtain the benefit of the Consultant's
knowledge and experience by retaining the Consultant, and the Consultant desires
to accept such position, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the Company and the Consultant hereby agree as follows:
1. Term of Agreement. The Company hereby agrees to retain the
Consultant as a consultant, and the Consultant hereby agrees to be retained by
the Company, upon the terms and subject to the conditions hereof for the period
commencing on January 1, 2008 (the "Effective Date") and ending on the date
which is the first annual anniversary of the Effective Date, unless earlier
terminated pursuant to Section 5 hereof; provided, however, that this Agreement
may be extended by the Company for additional one-year terms upon delivery of
written notice of such renewal at least 60 days prior to the expiration of the
term then in effect.
2. Consulting Services. During the Consulting Period, the Consultant
shall be available to perform consulting services with respect to the businesses
conducted by the Company. Such consulting services shall be related to such
matters as the Chief Executive Officer of the Company may designate from time to
time. The Consultant shall comply with reasonable requests for the Consultant's
consulting services and shall devote reasonable time and reasonable best
efforts, skill and attention to the performance of such consulting services,
including travel reasonably required in the performance of such consulting
services; provided, however, that the Consultant shall not be required to devote
more than 72 hours during any calendar quarter during the Consulting Period to
the performance of such consulting services.
3. Independent Contractor Status. The Consultant shall perform the
consulting services described in Section 2 hereof as an independent contractor
without the power to bind or represent the Company for any purpose whatsoever.
The Consultant shall not, by virtue of being a consultant hereunder, be eligible
to receive any employee benefits for which officers or other employees of the
Company are eligible at any time. The Consultant hereby acknowledges its
separate responsibility for all federal and state withholding taxes, Federal
Insurance Contribution Act taxes and workers' compensation and unemployment
compensation taxes, if applicable, and agrees to indemnify and hold the Company
harmless from any claim or liability therefor.
4. Compensation. As compensation for the consulting services to be
performed by the Consultant hereunder, the Company shall pay the Consultant a
consulting fee at the rate of (euro)165,000 per annum, payable in equal monthly
installments. The Company shall reimburse the Consultant, in accordance with the
Company's policies and procedures, for all proper expenses incurred by the
Consultant in providing consulting services hereunder.
5. Termination.
(a) This Agreement may be terminated at any time by the Consultant on
30 days prior written notice to the Company. In the event of such termination by
the Consultant, the Company shall pay to the Consultant any accrued and unpaid
consulting fee payable to the Consultant pursuant to Section 4 hereof and shall
reimburse the Consultant for expenses incurred by the Consultant pursuant to
Section 4 hereof prior to the date of such termination.
(b) This Agreement may be terminated at any time by the Company upon
xxxxxx notice to the Consultant in the event that the Consultant shall breach
any covenant contained in Section 2, 6, 7 or 8 hereof.
6. Noncompetition; Nonsolicitation.
(a) The Consultant acknowledges that during the Consulting Period it
will become familiar with trade secrets and other confidential information
concerning the Company and its subsidiaries and that the Consultant's services
will be of special, unique and extraordinary value to the Company and its
subsidiaries.
(b) The Consultant agrees that during the Consulting Period it shall
not in any manner, directly or indirectly, through any person, firm or
corporation, alone or as a member of a partnership or as an officer, director,
stockholder, investor or employee of or consultant to any other corporation or
enterprise or otherwise, engage or be engaged, or assist any other person, firm,
corporation or enterprise in engaging or being engaged, in any business that
manufactures or sells Competing Products in any geographic area in which the
Company or any of its subsidiaries is then conducting such business. "Competing
Product" means any dispensing system including pumps, closures and aerosol
valves.
(c) The Consultant further agrees that during the Consulting Period it
shall not (i) in any manner, directly or indirectly, induce or attempt to induce
any employee of the Company or any of its subsidiaries to terminate or abandon
his or her employment for any purpose whatsoever or (ii) in connection with any
business to which Section 6(b) applies, call on, service, solicit or otherwise
do business with any customer of the Company or any of its subsidiaries except
as is necessary to perform properly the Consultant's duties under this
Agreement.
(d) Nothing in this Section 6 shall prohibit the Consultant from being
(i) a stockholder in a mutual fund or a diversified investment company or (ii) a
passive owner of not more than two percent of the outstanding stock of any class
of a corporation, any securities of which are publicly traded, so long as the
Consultant has no active participation in the business of such corporation.
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(e) If, at any time of enforcement of this Section 6, a court or an
arbitrator holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court or
arbitrator shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. This Agreement shall not
authorize a court or arbitrator to increase or broaden any of the restrictions
in this Section.
7. Confidentiality. The Consultant shall not, at any time during the
Consulting Period, make use of or disclose, directly or indirectly, any (i)
trade secret or other confidential or secret information of the Company or of
any of its subsidiaries or (ii) other technical, business, proprietary or
financial information of the Company or of any of its subsidiaries not available
to the public generally or to the competitors of the Company or to the
competitors of any of its subsidiaries ("Confidential Information"), except to
the extent that such Confidential Information (a) becomes a matter of public
record or is published in a newspaper, magazine or other periodical available to
the general public, other than as a result of any act or omission of the
Consultant, (b) is required to be disclosed by any law, regulation or order of
any court or regulatory commission, department or agency, provided that the
Consultant gives prompt notice of such requirement to the Company to enable the
Company to seek an appropriate protective order, or (c) is necessary to perform
properly the Consultant's duties under this Agreement. Promptly following the
termination of the Consulting Period, the Consultant shall surrender to the
Company all records, memoranda, notes, plans, reports, computer tapes and
software and other documents and data which constitute Confidential Information
which it may then possess or have under the Consultant's control (together with
all copies thereof).
8. Inventions. The Consultant hereby assigns to the Company its entire
right, title and interest in and to all discoveries and improvements, patentable
or otherwise, trade secrets and ideas, writings and copyrightable material,
which may be conceived by the Consultant or developed or acquired by it during
the Consulting Period, which may pertain directly or indirectly to the business
of the Company or any of its subsidiaries. The Consultant agrees to disclose
fully all such developments to the Company upon its request, which disclosure
shall be made in writing promptly following any such request. The Consultant
shall, upon the Company's request, execute, acknowledge and deliver to the
Company all instruments and do all other acts which are necessary or desirable
to enable the Company or any of its subsidiaries to file and prosecute
applications for, and to acquire, maintain and enforce, all patents, trademarks
and copyrights in all countries.
9. Enforcement. The parties hereto agree that the Company and its
subsidiaries would be damaged irreparably in the event that any provision of
Section 6, 7 or 8 of this Agreement were not performed in accordance with its
terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to an injunction or injunctions to prevent
any breach or threatened breach of any of such provisions and to enforce such
provisions specifically (without posting a bond or other security). The
Consultant agrees that it will submit itself to the jurisdiction of the courts
of the State of Illinois in any action by the Company to enforce an arbitration
award against it or to obtain interim injunctive or other relief pending an
arbitration decision.
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10. Representations. The Consultant represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by
the Consultant does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Consultant is a party or by which it is bound, (ii) the Consultant is
not a party to or bound by any employment agreement, noncompetition agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of the Consultant, enforceable in accordance
with its terms.
11. Survival. Sections 7, 8 and 9 of this Agreement shall survive and
continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Consulting Period.
12. Arbitration. Any dispute or controversy between the Company and
the Consultant, whether arising out of or relating to this Agreement, the breach
of this Agreement, or otherwise, shall be settled by arbitration in Chicago,
Illinois administered by the American Arbitration Association, with any such
dispute or controversy arising under this Agreement being so administered in
accordance with its Commercial Rules then in effect, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall have the authority to award any remedy or relief
that a court of competent jurisdiction could order or grant, including, without
limitation, the issuance of an injunction. However, either party may, without
inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. Except as necessary in court proceedings
to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, neither a party nor an arbitrator may disclose the
existence, content or results of any arbitration hereunder without the prior
written consent of the Company and the Consultant. The Company and the
Consultant acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
13. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when (i)
delivered personally or by overnight courier to the following address of the
other party hereto (or such other address for such party as shall be specified
by notice given pursuant to this Section) or (ii) sent by facsimile to the
following facsimile number of the other party hereto (or such other facsimile
number for such party as shall be specified by notice given pursuant to this
Section), with the confirmatory copy delivered by overnight courier to the
address of such party pursuant to this Section:
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If to the Company, to:
AptarGroup, Inc.
000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx Xxxx, XX 00000
Attn: Chief Financial Officer
Fax: 000-000-0000
If to the Consultant, to:
Xxxx Xxxxxx Consulting GmbH
Xxxxxxxxxxxxxxx 0
00000 Xxxxxxxxxx
Xxxxxxx
14. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties with respect to the subject matter hereof
and supersedes and preempts any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof.
16. Successors and Assigns. This Agreement shall be enforceable by the
Consultant and its successors and assigns, and by the Company and its successors
and assigns.
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Illinois
without regard to principles of conflict of laws.
18. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only by the written agreement of the Company and the
Consultant, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
19. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
APTARGROUP, INC.
Name: King Harris
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Signature: /s/ King Harris
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Title: Chairman of the Board
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XXXX XXXXXX CONSULTING GMBH
Name: Xxxx Xxxxxx
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Signature: /s/ Xxxx Xxxxxx
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