AMENDED AND RESTATED EARNINGS SHARE UNITS AGREEMENT
Exhibit 10.3
AMENDED AND RESTATED
EARNINGS SHARE UNITS AGREEMENT
EARNINGS SHARE UNITS AGREEMENT
This amended and restated earnings share units agreement is dated February 27, 2006, and is
between SOUTHERN CONTAINER CORP., a Delaware corporation with offices at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (“Company”) and XXXXX X. XXXXXX III, residing at 0 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000 (“Executive”).
RECITALS
Company and Executive are parties to an Earnings Share Units Agreement, dated as of January 1,
2001 (as amended, the “Prior Agreement”), pursuant to which Company granted to Executive
Earnings Share Units (as defined in the Prior Agreement) to furnish additional incentive for
Executive to perform exceptional services, devote maximum ability and industry to the success of
Company’s business and equate his interests with those of the shareholders of Company.
Company and Executive desire to amend and restate the Prior Agreement in its entirety, as
hereinafter set forth.
The parties hereto agree as follows:
1. Definitions.
1.1 Except as set forth herein, each accounting term not defined in this Agreement has the
meaning given such term under generally accepted accounting principles applied on a consistent
basis.
1.2 “Accumulated Earnings Share” means the aggregate, cumulative amount standing to
Executive’s credit in Executive’s ESU Account, as of the date upon which the Accumulated Earnings
Share is determined, plus the amount, if any, to be credited to Executive’s ESU Account pursuant to
Section 1.9 but which, as of such date, has not been determined and/or recorded therein.
1.3 “Change of Control” means if Xxxxxxxx Family Members do not own or otherwise
control, directly or indirectly, at least 50% of the ownership interests in Company or in any
entity that succeeds to all or substantially all of the assets of Company.
1.4 “Employment Agreement” means the Amended and Restated Employment Agreement, dated
as of January 1, 2006, between Company and Executive, as amended.
1.5 “Escrow Agent” means the administrative agent designated pursuant to Company’s
principal credit facility (or, if there is no administrative agent, the financial institution
extending the largest loan commitment to Company) or such other financial institution, law firm or
other entity as Company and Executive agree.
1.6 “Escrow Agreement” means an escrow agreement substantially in the form attached
hereto as Exhibit “A”.
1.7 “ESU Cessation Date” means December 31, 2011.
1.8 “Executive’s Earnings Base” means the Net Income (whether positive or negative)
with respect to each complete fiscal year of Company (commencing with the fiscal year ending
December 2000) and continuing up to, but not including, the fiscal year in which a Termination
Event or Change of
Control occurs, divided by 1,000,000, and multiplied by the number of Units granted as of the
end of such complete fiscal year.
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1.9 “Executive’s ESU Account” means the record to be maintained by Company in which,
promptly after the Independent Auditors determine the Net Income for a fiscal year, Company will
record Executive’s Earnings Base for said fiscal year (i.e. a credit if the Net Income was
positive, or a debit if the Net Income was negative).
1.10 “Gross Cause” means Executive’s fraud, gross misconduct, gross negligence,
disloyalty, gross insubordination, breach of trust, breach of any material provision of the
Employment Agreement or of the Letter Agreement and any other similar causes; provided that after a
Change in Control, none of such acts, other than fraud and material breach of the Letter Agreement,
will constitute Gross Cause unless the act is material and Executive has been informed, in writing,
of such act and provided with a reasonable opportunity for cure, if the act is subject to cure,
consisting of at least 10 days.
1.11 “Xxxxxxxx Family Members” means Xxxxxx and Xxxxxx Xxxxxxxx, members of their
immediate families, Trustees under Trust(s) for the benefit of any of them, and the personal
representatives of any of the foregoing.
1.12 “Independent Auditors” means the certified public accountants authorized by the
Board of Directors of Company to audit its books.
1.13 “Letter Agreement” has the meaning given such term in Article 4.
1.14 “Net Income” means the annual consolidated net pre-tax operating income of
Company, as determined by the Independent Auditors. Such determination will be made in accordance
with generally accepted accounting principles and practices, and will, in all respects, be binding
and conclusive on the parties hereto. Without limiting the generality of the foregoing sentence, in
computing Net Income, all non-operating profits and losses (including, without limiting the
generality of the foregoing, LIFO inventory adjustments and gains or losses on the sale or other
disposition of capital assets or other Extraordinary Gains or Losses) will be disregarded.
1.15 “Outstanding Indebtedness” means, at a given date, the then outstanding
indebtedness (including principal, interest and other sums) owed to Company on account of any loans
made by Company to Executive or Executive and Xxxxxx X. Xxxxxx.
1.16 “Solvay” means Solvay Paperboard LLC, a Delaware limited liability company.
1.17 “Solvay Accumulated Earnings Share” has the meaning given such term in Section
2.2.
1.18 “Successor” means if the Change of Control occurs due to (i) Company transferring
all or substantially all of its assets, the entity acquiring such assets, (ii) Company merging
(where it is not the surviving entity) or consolidating with another entity, such other entity, and
(iii) a transfer of ownership interests by Xxxxxxxx Family Members, Company.
1.19 “Termination Event” means the earlier of (a) the termination of Executive’s
employment with Company; or (b) the occurrence of the ESU Cessation Date.
1.20 “Units” and “Earnings Share Units” mean the Earnings Share Units granted
to Executive by Company as described in Article 2.
2. Grant of Earnings Share Units; Credit for Prior Accumulated Earnings Share; Annual
Statement.
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2.1 Grant of Units. Company granted to Executive 6,000 Units on December 30, 2000 and
2,000 Units on the last day of each of fiscal year 2001 and 2002, for a total of 10,000 Units in
the aggregate. Such Units will be payable at the times and in the manner provided in Articles 3 and
5. Notwithstanding anything to the contrary contained in this Agreement, (x) Executive’s ESU
Account will not be credited or debited for periods after a Termination Event; and (y) if a Change
of Control occurs prior to the ESU Cessation Date, Executive’s ESU Account will be credited (but
not debited) for the Continuation Period (as defined in Section 5.1(b)), if any, during which
Executive renders services for the Successor, which credit, if any, will be paid by Company if and
when the balance of the Escrow Fund (as defined in the Escrow Agreement) is released by the Escrow
Agent to Executive or will be retained Company if and when the balance of the Escrow Fund is
released by the Escrow Agent to Company. If the Change of Control is due to an asset sale, or
Company does not continue to conduct its business as a separate legal entity during the
Continuation Period, a good faith estimate will be made by Company as to what the Net Income would
have been during the Continuation Period as if Company continued to be operated under the same
organizational structure as existed immediately prior the Change of Control.
2.2 Credit for Prior Accumulated Earnings Share. Executive and Solvay were parties to
a certain Amended and Restated Earnings Share Units Agreement dated as of April 1, 1999 (the
“Solvay ESU Agreement”). As of January 1, 2000, Executive’s Accumulated Earnings Share, as
defined in the Solvay ESU Agreement, was $173,082 (the “Solvay Accumulated Earnings Share
Amount”). Pursuant to Article 3 of the Prior Agreement, Company agreed, as of
January 1, 2000, to credit Executive’s ESU Account with an amount equal to the Solvay Accumulated
Earnings Share Amount, in consideration of which Executive agreed that the Solvay ESU Agreement was
terminated and of no force or effect, and that Solvay has no further obligation or liability to
Executive thereunder.
2.3 Annual Statement. No later than 120 days after the end of each fiscal year,
Company will furnish to Executive a statement setting forth in reasonable detail Executive’s
Earnings Base for such fiscal year and the Accumulated Earnings Share as of the end of such fiscal
year.
3. Payment of Accumulated Earnings Share upon Termination of Employment or ESU Cessation
Date.
3.1 Occurrence of Death or Disability; ESU Cessation Date; Termination without Gross
Cause.
3.1.1 If, prior to a Change of Control, Executive’s employment by Company is terminated by
reason of Executive’s death, Company will pay the Accumulated Earnings Share as of Executive’s
death (net of applicable income and employment taxes and subject to Section 3.3) to such
beneficiary or beneficiaries as Executive designated in a written notice filed with the Secretary
of Company (the last such notice to govern) or, if no such designation was so filed, to Executive’s
estate. Such amount will be paid in full within 30 days after Executive’s death (provided that if
payment is made to Executive’s estate, it will be paid in full within 30 days after Company is
presented with evidence of the appointment and qualification of the representative’s of Executive’s
estate), and in all other respects this Agreement and all rights of Executive hereunder will
automatically be deemed terminated and of no force or effect and Company will have no further
obligation or liability to Executive or his estate hereunder.
3.1.2 If, prior to a Change of Control and while Executive is employed by Company, (i) the ESU
Cessation Date occurs; (ii) Executive’s employment by Company is terminated by
reason of Executive’s permanent disability; or (iii) Executive’s employment by Company is
terminated by Company without Gross Cause, Company will pay to Executive the Accumulated Earnings
Share as of such event (net of applicable income and employment taxes and subject to Section 3.3).
Such amount will be paid in full within 30 days after such event, and in all other respects this
Agreement (other than Article 4) and all
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rights of Executive hereunder will automatically be deemed
terminated and of no force or effect and Company will have no further obligation or liability to
Executive hereunder.
3.1.3 If the parties disagree as to whether Executive suffered a permanent disability, the
dispute will be resolved by a panel of three medical doctors, one selected by Company, the second
by Executive and the third by the two medical doctors so selected. Such arbitration will be
conducted in Suffolk County, New York in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then obtaining and the award rendered will be binding and
conclusive upon Company and Executive.
3.2 Termination by Executive Prior to ESU Cessation Date or by Company for Gross
Cause. If prior to a Change of Control, Executive’s employment by Company is terminated by
Company for Gross Cause or by Executive for any reason other than due to his death or permanent
disability, then all Units granted as of such termination will lapse and be forfeited and canceled
and Executive will thereafter have no right to receive any payment with respect thereto or to be
granted Units thereafter, and this Agreement (other than Article 4) and all rights of Executive
hereunder will automatically be deemed terminated and of no further force or effect and Company
will have no further obligation or liability to Executive hereunder. Notwithstanding the foregoing,
within 30 days after such termination, Company will pay to Executive the Solvay Accumulated
Earnings Share in full.
3.3 Adjustment to Accumulated Earnings Share. Notwithstanding anything contained in
this Agreement to the contrary, within 45 days after Company receives the determination of the Net
Income for the fiscal year during which a Termination Event occurs, the amount payable to Executive
hereunder, if any, will be adjusted by multiplying (i) the amount that would have been Executive’s
Earnings Base, with respect to such fiscal year, had the Termination Event not occurred until the
first day of the next succeeding fiscal year, by (ii) a fraction, the numerator of which will be
the total number of days that elapsed between the commencement of the calendar year in which the
Termination Event occurs and the date of such Termination Event, and the denominator of which will
be 365. The amount so computed will then be added or subtracted (depending upon whether a credit
or a debit) to or from the amount to be paid by Company under Subsection 3.1.1 or 3.1.2, as the
case may be. If the Accumulated Earnings Share has been paid in full at the time of such
adjustment, Company will pay Executive (or if applicable, Executive’s estate) such amount (if a
credit) within 30 days after such adjustment, or Executive (or his estate) will repay such amount
to Company (if a debit) within 30 days after Company’s demand therefore, as the case may be.
3.4 Example. Exhibit “B” sets forth an example of the operation of Sections 1.2, 1.8,
1.9 and 3.1.
4. Non-Competition, Non-Solicitation and Confidentiality. Executive has executed and
delivered to Company and Solvay a letter agreement, dated as of the date hereof, containing certain
provisions with respect to his competing with Company’s and Solvay’s businesses, his solicitation
of Company’s and Solvay’s customers and employees and his obligation not to disclose confidential
matters (the “Letter Agreement”). Executive hereby ratifies and confirms his obligations
under the Letter Agreement. As a condition to the receipt of payments hereunder, Executive agrees
that, in addition to and without limiting the continuing effectiveness of the Letter Agreement so
long as he is bound thereby, the provisions of the Letter Agreement are deemed incorporated in this
Agreement by reference as though fully set forth herein and he will comply therewith throughout the
term of his employment by Company and after termination thereof so long as the Letter Agreement
remains in effect. In the event of any breach of the foregoing by Executive, then, in addition to
and without limiting any other remedies that Company and Solvay may have, all Units granted as of
such
termination will lapse and be forfeited and canceled and Executive will thereafter have no
right to receive (or to continue to receive) any payment with respect thereto and this Agreement
and all rights of Executive hereunder will automatically be deemed terminated and of no further
force or effect and Company will have no further obligation or liability to Executive hereunder.
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5. Change of Control.
5.1 If a Change of Control occurs while Executive is employed by Company and:
(a) the Successor does not request prior to the Change of Control that Executive remain in the
Successor’s employ under terms described in Section 5.1(b), or the Change of Control occurs after
the ESU Cessation Date, then Company will pay to Executive the Accumulated Earnings Share as of the
Change of Control (net of applicable income and employment taxes and subject to Section 5.2). Such
amount will be paid in full within 30 days after the Change of Control and in all other respects
this Agreement (other than Article 4) and all rights of Executive hereunder will automatically be
deemed terminated and of no force or effect and Company will have no further obligation or
liability to Executive hereunder; or
(b) the Successor requests prior to the Change of Control that Executive remain in the
Successor’s employ for a period of up to 12 months after the Change of Control, as determined by
the Successor, but in no event beyond the ESU Cessation Date (such period selected by the Successor
being called the “Continuation Period”), in the county of Kings, Queens, Nassau, New York
or Suffolk, New York, and in a position, and with compensation, duties and other terms of
employment substantially comparable to those in effect immediately prior to the Change of Control,
and Executive agrees to accept such employment, then (x) Company, Executive and Escrow Agent will
execute and deliver to each other the Escrow Agreement, and (y) Company will deposit with Escrow
Agent an amount equal to the Accumulated Earnings Share as of the date of the Change of Control
(net of applicable income and employment taxes and subject to Section 5.2), to be held and
disbursed by Escrow Agent in accordance with the terms of the Escrow Agreement, and in all other
respects this Agreement (other than Article 4) and all rights of Executive hereunder will
automatically be deemed terminated and of no force or effect and Company will have no further
obligation or liability to Executive hereunder; or
(c) the Successor requests prior to the Change of Control that Executive remain in the
Successor’s employ under the terms described in Section 5.1(b) and Executive fails or refuses to
accept such employment, for any reason whatsoever, then all Units will lapse and be forfeited and
canceled and Executive will thereafter have no right to receive any payment (or further payment)
with respect thereto, and this Agreement (other than Article 4) and all rights of Executive
hereunder will automatically be deemed terminated and of no further force or effect and Company
will have no further obligation or liability to Executive hereunder.
5.2 Within 45 days after Company receives the determination of the Net Income for the period
commencing with the first day of the fiscal year during which the Change of Control occurs and
terminating on the date of the Change of Control (the “Applicable Net Income”), the
Accumulated Earnings Share as of the Change of Control will be increased or decreased (depending
upon whether a credit or a debit) by an amount equal to the Applicable Net Income divided by
1,000,000, and multiplied by the number of Units granted as of the Change in Control. If such
amount is a credit, and (x) Escrow Agent has disbursed all funds under the Escrow Agreement at the
time Company receives such determination, Company will pay such credit to Executive within 30 days
thereafter, or (y) Escrow Agent has not disbursed all funds under the Escrow Agreement at the time
Company receives such determination, within 30 days thereafter Company will pay such credit to
Escrow Agent to be held and disbursed by it pursuant to the Escrow Agreement. If such amount is a
debit, and (x) Escrow Agent is holding an amount equal to or less than the amount of the debit,
Company will be entitled to be paid the entire balance held by the Escrow Agent and Executive will
repay the amount of the debit in excess of the funds being held by Escrow Agent within 30 days
after Company’s demand therefore, or
(y) Escrow Agent is holding more than the amount of the debit, Company will be entitled to be
paid the amount of the debit by the Escrow Agent within 30 days after Company’s demand therefore.
6. No Right of Employment. Nothing in this Agreement will: (a) confer upon Executive
any right to continue in the employ of Company or a Successor or obligate Company or a Successor or
Executive
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to continue Executive’s employment; or (b) subject to the terms of the Employment
Agreement, interfere with the right of Company, a Successor or Executive to terminate Executive’s
employment at any time or for any reason.
7. General Provisions.
7.1 Notices. All notices given hereunder must be in writing and sent by certified
mail, return receipt requested, or by nationally recognized overnight courier, addressed to the
party intended to receive the same at its or his address set forth above, or at such other address
or to such designee as such party designates by a notice given in the manner herein provided. Each
such notice will be deemed given on the date it is delivered or its delivery is refused if given in
accordance with this Section 7.1.
7.2 Invalid Provisions. The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any one or more of the other provisions
of this Agreement.
7.3 Assignment; Binding Effect; Survival. Executive may not assign this Agreement or
any of his rights or obligations hereunder. This Agreement is binding upon and will inure to the
benefit of Executive and his heirs, distributees and legal representatives. This Article 7 will
survive termination of this Agreement.
7.4 Entire Agreement; Waiver; Remedies; Governing Law; Etc. This agreement (with the
Employment Agreement and the Letter Agreement) constitutes the entire agreement between the parties
concerning the subject matter hereof and there are no agreements or representations with respect
hereto except as contained herein. This Agreement supersedes any other or prior employment or
compensation agreement between the parties with respect to the subject matter hereof, including the
Prior Agreement. This Agreement may not be amended nor any of its provisions waived, except by a
writing signed by the parties hereto. A waiver of any of the terms or conditions of this Agreement,
or any breach thereof, will not be deemed a waiver of such term or condition for the future, or of
any other term or condition, or of any subsequent breach thereof. This Agreement (and any claims or
controversies arising out of or relating to this Agreement) will be governed by the law of the
State of New York. Wherever reference is made to the acknowledgment, agreement, approval, consent,
demand, determination, election or request by a party or parties hereto, the same must be in
writing.
7.5 Descriptive Headings; References. Descriptive headings herein are for convenience
only and will in no way define, limit or affect this Agreement. References to Articles and Sections
refer to the Articles and Sections of this Agreement unless otherwise indicated.
7.6 Legal Fees. If any litigation is commenced by either party against the other to
enforce any provision of this Agreement or the Escrow Agreement, or by Company against Executive to
enforce any provision of the Letter Agreement, the prevailing party will be entitled, in addition
to such other relief as may be granted, to a reasonable sum as and for his or its attorneys’ fees
and costs and court costs in such litigation which will be determined by the court in such
litigation or in a separate action brought for that purpose.
7.7 Amendment and Restatement. Company and Executive hereby agree that upon execution
of this Agreement, the terms and provisions of the Prior Agreement will be and hereby are amended
and restated in their entirety by the terms and conditions of this Agreement, and the terms
and provisions of the Prior Agreement will be and hereby are superseded by this Agreement.
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The parties are signing this Agreement as of the date stated in the introductory clause.
SOUTHERN CONTAINER CORP.
By: /s/ Xxxxxx Xxxxxxxx
Name: /s/ Xxxxxx Xxxxxxxx
Title: /s/ Chief Executive Officer
Name: /s/ Xxxxxx Xxxxxxxx
Title: /s/ Chief Executive Officer
/s/ Xxxxx X. Xxxxxx III
XXXXX X. XXXXXX III
XXXXX X. XXXXXX III
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EXHIBIT “A”
This escrow agreement (“Agreement”) is dated as of ___, and is
between SOUTHERN CONTAINER CORP., a Delaware corporation with offices at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (“Company”), XXXXX X. XXXXXX III, residing at 0 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000 (“Executive”), and ___, a [New
York][limited liability partnership] (the “Escrow Agent”).
RECITAL
Pursuant to an Amended and Restated Earnings Share Unit Agreement dated as of February ___,
2006 (the “ESU Agreement”), Company has deposited $___with Escrow Agent, to be
held and disbursed in accordance with this Agreement.
The parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement have the
meanings assigned to such terms in the ESU Agreement.
2. Establishment of Escrow; Deposit and Investment of Escrow Fund.
(a) Company is depositing with Escrow Agent the sum of $___in immediately available
funds (as increased by any earnings thereon, and as reduced by any disbursements provided for
herein, the “Escrow Fund”). Escrow Agent acknowledges receipt thereof. The Escrow Fund will
be held in [Escrow Agent’s interest bearing attorney trust funds account][by Escrow Agent], until
disbursement of the entire Escrow Fund. The Escrow Fund will be kept in a segregated account and
invested [, to the extent available in connection with the escrow agent’s attorney trust funds
account,] in (with Company’s consent, not to be unreasonably withheld) investments selected by
Executive that Company is specifically permitted to make pursuant to its lending agreements (i.e.
other than investments permitted only pursuant to a “basket clause”). If at any time Company is not
restricted in its investments, the most recent investment restrictions that applied to Company will
apply to this Section 2(a). The maturities of such investments will be such as to permit Escrow
Agent to make prompt payment of the Escrow Fund to the party entitled thereto.
(b) Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and disburse the
Escrow Fund pursuant to the terms and conditions hereof.
(c) Any interest earned on the Escrow Fund will be retained by the Escrow Agent and be deemed
part of the Escrow Fund.
3. Disbursement of Escrow Fund.
(a) Escrow Agent will pay to Executive to the extent available out of the Escrow Fund the sum
of $50,000 per month (the “Installment Payments”) commencing on [the first day of
the first month after execution of this Escrow Agreement] and on each of first day of each month
thereafter until such time as it has disbursed the entire balance of the Escrow Fund.
Notwithstanding the foregoing, if there is an unresolved Company Release Notice or Escrow Release
Notice (each as defined below) pending on the day a payment is due under this paragraph (a), Escrow
Agent will not disburse any portion of the Escrow Fund to Company or Executive until such Release
Notice has been resolved as provided in this Agreement.
INITIAL_____
A-1
(b) If Company believes that (i) Executive has terminated his employment (other than due to
his death or permanent disability) prior to the completion of the Continuation Period or that
Executive’s employment has been terminated by the Successor during the Continuation Period for
grounds that would constitute Gross Cause under the ESU Agreement, and that it is therefore
entitled to the Escrow Fund, or (ii) it is entitled to a disbursement of the Escrow Fund pursuant
to Section 5.2 of the ESU Agreement, Company may give notice to Escrow Agent describing such event
in reasonable detail and directing Escrow Agent to release the Escrow Fund or the excess amount of
the Escrow Fund, as the case may be, to Company (the “Company Release Notice”). Escrow
Agent will promptly notify Executive of its receipt of the Company Release Notice, which notice
will include a copy thereof. Escrow Agent will release the Escrow Fund (or the requested portion
thereof) to Company unless within 30 days after the giving of such notice by Escrow Agent, Escrow
Agent receives a notice from Executive (which will concurrently be sent by Executive to Company)
objecting to such release (an “Executive Objection Notice”) within 30 days after the giving
of such notice by Escrow Agent, Escrow Agent shall release the Escrow Fund (or the applicable
portion thereof) to Company. Notwithstanding anything to the contrary contained herein, a Company
Release Notice may be given by fax to Escrow Agent at (___) ___-___, attention ___.
(c) If (x) Executive believes that (i) he has completed his services for the Successor for the
entire Continuation Period; or (ii) his employment by the Successor has terminated prior to the
completion of the entire Continuation Period due to his permanent disability or as a result of
termination by the Successor for grounds that would not constitute Gross Cause under the ESU
Agreement and that he is therefore entitled to the Escrow Fund, or (y) Executive dies during the
Continuation Period, Executive or the representatives of his estate (the
“Representatives”), as the case may be, may give notice to Escrow Agent describing such
event in reasonable detail and directing Escrow Agent to release the Escrow Fund to Executive or
the Representatives, as the case may be (the “Executive Release Notice”). Escrow Agent
will promptly notify Company of its receipt of the Executive Release Notice, which notice will
include a copy thereof. Escrow Agent will release the Escrow Fund to Executive or the
Representatives, as the case may be, unless within 30 days after the giving of such notice by
Escrow Agent, Escrow Agent receives a notice from Company (which will concurrently be sent by
Company to Executive or the Representatives, as the case may be) objecting to such release (a
“Company Objection Notice”). Notwithstanding anything to the contrary contained herein, the
Executive Release Notice may be given by fax to Escrow Agent at (___) ___-___, attention
___.
(d) If, following the giving of an Objection Notice, Executive or the Representatives, as the
case may be, and Company resolve the dispute between them, they will jointly notify Escrow Agent of
such determination (the “Joint Notice”) and Escrow Agent will follow the directions set
forth in the Joint Notice. If Executive or the Representatives, as the case may be, and Company do
not resolve the dispute within 20 days after the giving of the Objection Notice, the dispute will
be resolved by arbitration, in Nassau County, New York, before a panel of three arbitrators in
accordance with the Commercial Rules of the American Arbitration Association then obtaining. The
determination by the arbitrators will be binding upon the parties and will establish whether the
Objection Notice should be honored, as well as the manner in which the parties will pay the fees
and expenses of such arbitration (including the reasonable fees of counsel to the parties). The
arbitrators will promptly deliver to Executive or the Representatives, as the case may be, Company,
and Escrow Agent an award (the “Award”) setting forth their determination.
(e) As promptly as may be practical after either (i) the 10th day following the
giving of a Release Notice as to which no timely Objection Notice has been given pursuant to
Section 3(a) or 3(b) hereof, as the case may be, or (ii) receipt by Escrow Agent of a Joint Notice
or Award pursuant to Section 3(d), Escrow Agent will deliver the Escrow Fund or the applicable
portion thereof in accordance with the directions set forth in said undisputed Release Notice,
Joint Notice or Award.
INITIAL_____
A-2
4. Duties of Escrow Agent
(a) Escrow Agent will not be under any duty to give the Escrow Fund any greater degree of care
than it gives its own similar property; however, Escrow Agent will be required to invest any funds
held hereunder in accordance with the terms hereof.
(b) Escrow Agent will not be liable for actions or omissions hereunder, including any
diminution in the amount of the Escrow Fund in connection with any investment made by Escrow Agent
as provided in Section 2(a), except for its own gross negligence or willful misconduct and, except
with respect to claims based upon such gross negligence or willful misconduct that are successfully
asserted against Escrow Agent, Executive and Company will jointly and severally indemnify and hold
harmless Escrow Agent (and any successor Escrow Agent) from and against any and all losses,
liabilities, claims, actions, damages and expenses, including reasonable attorneys’ fees and
disbursements, arising out of or in connection with this Agreement.
(c) Escrow Agent will be entitled to rely upon any order, judgment, certification, demand,
notice, instrument or other writing delivered to it hereunder without being required to determine
the authenticity or the correctness of any fact stated therein or the propriety or validity of the
service thereof. Escrow Agent may act in reliance upon any instrument or signature believed by it
to be genuine and may assume that the person purporting to give receipt or advice or make any
statement or execute any document in connection with the provisions hereof has been duly authorized
to do so. Escrow Agent may conclusively presume that the undersigned representative of any party
hereto that is an entity has full power and authority to instruct Escrow Agent on behalf of that
party unless written notice to the contrary is given to Escrow Agent.
(d) Escrow Agent may act pursuant to the advice of counsel with respect to any matter relating
to this Agreement and will not be liable for any action taken or omitted by it in good faith in
accordance with such advice.
(e) Escrow Agent does not have any interest in the Escrow Fund but is serving as escrow holder
only and has only possession thereof. Any payments of income from the Escrow Fund will be subject
to withholding regulations then in force with respect to United States taxes. The parties hereto
will provide Escrow Agent with appropriate Internal Revenue Service Forms W-9 for tax
identification number certification, or nonresident alien certifications. This Section 4(e) and
Section 4(b) will survive notwithstanding any termination of this Agreement or the resignation of
Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value, genuineness or
collectability of any security or other document or instrument held by or delivered to it.
(g) Escrow Agent (and any successor Escrow Agent) may at any time resign as such by delivering
the Escrow Fund to any successor Escrow Agent jointly designated by Executive and Company in
writing, or to any court of competent jurisdiction, whereupon Escrow Agent will be discharged of
and from any and all further obligations arising in connection with this Agreement. The resignation
of Escrow Agent will take effect on the earlier of (i) the appointment of a successor (including a
court of competent jurisdiction) or (ii) the day that is 30 days after the date of giving notice of
resignation to Executive and Company. If, at that time, Escrow Agent has not received a designation
of a successor Escrow Agent, Escrow Agent’s sole responsibility after that time will be to retain
and safeguard the Escrow Fund until receipt of a designation of successor Escrow Agent or a joint
written disposition instruction by Executive and Company or a final, non-appealable order of a
court of competent jurisdiction.
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(h) Executive and Company will jointly and severally reimburse Escrow Agent for all reasonable
expenses, disbursements and advances incurred or made by Escrow Agent in performance of its
duties hereunder (including reasonable fees, expenses and disbursements of its counsel).
(i) No printed or other matter in any language (including, without limitation, prospectuses,
notices, reports and promotional material) that mentions Escrow Agent’s name or the rights, powers
or duties of Escrow Agent will be issued by the other parties hereto or on such parties’ behalf
unless Escrow Agent first gives its specific written consent thereto.
[(j) The parties acknowledge that Escrow Agent is acting as attorney for Company. The parties
agree that in the event of a dispute involving the ESU Agreement or this Agreement, Escrow Agent
may continue to serve as the attorney for Company in connection with said dispute.]
5. Limited Responsibility. This Agreement expressly sets forth all the duties of
Escrow Agent with respect to any and all matters pertinent hereto. No implied duties or obligations
will be read into this Agreement against Escrow Agent. Escrow Agent will not be bound by the
provisions of any agreement among the other parties hereto except this Agreement.
6. Tax Matters.
(a) The parties agree that, for purposes of federal and other taxes based on income, Executive
will be treated as the owner of the Escrow Fund and that Executive will report all income, if any,
that is earned on, or derived from, the Escrow Fund as its income in the taxable year or years in
which such income is properly includible and pay any taxes attributable thereto.
(b) Executive acknowledges that if he terminates his employment (other than due to his death
or permanent disability) prior to the completion of the Continuation Period or his employment is
terminated by the Successor during the Continuation Period for grounds that would constitute Gross
Cause under the ESU Agreement, then Company would have withheld and paid over on Executive’s behalf
taxes on sums that Executive was not entitled to pursuant to this Agreement. As a result,
Executive would be entitled to a refund of such taxes. Accordingly, Executive agrees that (i) in
such event, he will amend his income tax returns so as to seek a refund of any income taxes paid by
him or on his behalf with respect to any income that he did not ultimately receive hereunder; and
(ii) he will pay any such refund to Company within 15 days after receiving the same from the
applicable taxing authorities.
7. Amendments and Waivers; Delay Not a Waiver; Remedies. This Agreement may be
amended or modified only by an instrument in writing signed by Executive, Company and Escrow Agent,
and any provision of this Agreement may be waived by Executive, Company and Escrow Agent. No waiver
by any party hereto will be effective unless it is in writing and is signed by such party. No
failure on the part of any party hereto to exercise, and no delay in exercising, any right
hereunder will operate as a waiver thereof or preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
8. Binding Effect. This Agreement will be binding upon, and will inure to the benefit
of, the parties hereto and their respective heirs, distributees, legal representatives, successors
and assigns, except that Executive may not transfer his rights or obligations hereunder.
9. Notices. All notices given hereunder must be in writing and sent by certified
mail, return receipt requested, or by nationally recognized overnight courier, addressed to the
respective party at its or his address set forth above, or at such other address or to such
designee as such party designates by a notice given
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in the manner herein provided. Each such
notice will be deemed given on the date it is delivered or its delivery is refused if given in
accordance with this Article 9 and upon confirmed receipt if given by fax as provided in
Section 3(b) and 3(c).
10. Headings. The headings and captions hereunder are for convenience only and will
not affect the interpretation or construction of this Agreement.
11. Severability. The provisions of this Agreement are intended to be severable. If
any provision of this Agreement is held invalid or unenforceable in whole or in part in any
jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
12. Counterparts. To facilitate execution, this Agreement may be executed in as many
counterparts as may be convenient or required. It will not be necessary that the signature of, or
on behalf of, each party, or that the signature of all persons required to bind any party, appear
on each counterpart. All counterparts will collectively constitute a single document. It will not
be necessary in making proof of this Agreement to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.
Any signature page to any counterpart may be detached from such counterpart without impairing the
legal effect of the signatures thereon and thereafter attached to another counterpart.
13. Facsimile and Photocopy. Any facsimile or photocopy signature on any notice,
document or other certificate delivered pursuant to this Agreement will be deemed to have the same
force and effect as an original signature, and to the fullest extent permitted by law may be used
in lieu of an original signature to evidence the execution and delivery of the document,
certificate or instrument to which such facsimile or photocopy signature is attached.
14. Integration. This Agreement set forth the entire agreement among the parties
hereto relating to the subject matter hereof and supersedes any prior oral or written statements or
agreements with respect to such subject matter.
15. Governing Law. This Agreement (and any claims or controversies arising out of or
relating to this Agreement) will be governed by the law of the State of New York.
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A-5
The parties are signing this Agreement as of the date stated in the introductory clause.
| SOUTHERN CONTAINER CORP. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXX X. XXXXXX III | ||||
| [ESCROW AGENT] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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A-6
EXHIBIT “B”
By way of example only:
| Total | ||||||||||||||||
| Units | Executive’s | Accumulated | ||||||||||||||
| Date | Granted | Net Income | Earnings Base | Earnings Share* | ||||||||||||
1/1/02
|
10,000 | $ | 45,121,000 | $ | 360,968 | $ | 784,700 | |||||||||
1/1/03
|
10,000 | $ | 33,592,000 | $ | 335,920 | $ | 1,120,620 | |||||||||
1/1/04
|
10,000 | $ | 34,925,000 | $ | 349,250 | $ | 1,469,870 | |||||||||
1/1/05
|
10,000 | $ | 40,628,000 | $ | 406,280 | $ | 1,876,150 | |||||||||
1/1/06
|
10,000 | $ | 30,465,000 | $ | 304,650 | $ | 2,180,800 | |||||||||
Date
|
= | date of Termination Event | ||
Net Income
|
= | Net Income for the year preceding the year in which the Termination Event occurred | ||
Earnings Base
|
= | (Net Income/1,000,000) x Units Granted |
* — including Solvay Accumulated Earnings Share
Figures in italics are estimates.
Unless Section 3.2 or 5.1(c) is applicable, if Executive’s employment is terminated on any of the
dates set forth above, he would be entitled to receive the amount set forth under “Accumulated
Earnings Share” above applicable to the date of termination.
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