EXECUTIVE RETENTION PAY AGREEMENT
This Agreement is made as of the 1st day of October, 1997 between
SWEETHEART HOLDINGS INC., a Delaware corporation (the "Company") and XXXXXX X.
XXXXXX (the "Executive"), residing at 0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000.
SECTION I.
INTRODUCTION
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The Company wishes to recognize the Executive's importance to the future
success of the business of the Company by providing him with an incentive to
devote his continued abilities to the future success of the Company's business.
SECTION II.
DEFINITIONS
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Whenever used herein, the masculine pronoun shall be deemed to include the
feminine, and the singular to include the plural, unless the context clearly
indicates otherwise, and the following words and phrases, when used herein,
have the meanings set forth below:
"Account" means the Executive's account established under the Agreement
and maintained by the Trustee to reflect the Executive's interest under this
Agreement.
"Base Salary" means the Executive's annual compensation (determined prior
to any deferral elections the Executive has made under any of the Company's
retirement or deferred compensation plans) shown on the Company's payroll
records exclusive of bonus compensation, commissions or other extraordinary
remuneration.
"Beneficary" means the person that the Executive designated most recently
in writing to the Trustee; provided, however, that if the Executive has failed
to make a designation, no person designated is alive, no trust has been
established, or no successor Beneficiary has been designated who is alive, the
term Beneficiary means (a) the Executive's spouse or (b) if no spouse is alive,
the Executive's surviving children, or (c) if no children are alive, the
Executive's parent or parents, or (d) if no parent is alive, the legal
representative of the deceased Executive's estate.
"Cause" means the occurrence of any of the following events: (i) willful
and continued failure (other than such failure resulting from his incapacity
during physical or mental illness) by the Executive to substantially perform
his duties with the Company or Sweetheart Cup Company Inc.; provided, however,
that the Executive must be notified by the Company of any such failure to
perform his duties and shall have 30 days from the date of such notice to cure
such failure; (ii) any act by the Executive of fraud, misappropriation,
dishonesty, embezzlement or similar conduct against the Company or Sweetheart
Cup Company Inc.; or (iii) indictment or conviction of the Executive for a
felony or any other crime involving moral turpitude.
"Change in Control," means the occurrence, of:
(a) An acquisition (other than directly from the Company) of any voting
securities of the Company (the "Voting Securities") or the Company's
wholly-owned subsidiary (Sweetheart Cup Company Inc.) by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")) other than American
Industrial Partners Capital Fund, LP or its affiliates or any employee
benefit plan maintained by the Company, immediately after the which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty-one percent (51%) or more of
the combined voting power of the Company's or Sweetheart Cup Company Inc.'s
then outstanding Voting Securities; or
(b) The consummation of one of the following transactions:
(i) A Merger, consolidation or reorganization involving the Company
where the stockholders of the Company, immediately before such merger,
consolidation or reorganization, fail to own directly or indirectly
immediately following such merger, consolidation or reorganization, at
least fifty-one (51%) of the combined voting power of the outstanding
voting securities of the corporation resulting from such merger or
consolidation or reorganization in substantially the same proportion as
their ownership of the Voting Securities immediately before such merger,
consolidation or reorganization.
(ii) A complete liquidation or dissolution of the Company or of
Sweetheart Cup Company Inc.; or
(iii) The sale or other disposition of all or substantially all of the
assets of the Company or of Sweetheart Cup Company Inc.
"Code" means the Internal Revenue Code of 1986, as amended.
"Disabled" has the same meaning as provided in the long-term disability
plan or policy maintained or, if applicable, most recently maintained, by the
Company or Sweetheart Cup Company Inc. for the Executive. If no long-term
disability plan or policy was ever maintained on behalf of the Executive the
occurrence of a disability within the meaning of Section 72(m)(7) of the Code.
"Equity Sale" means the occurrence, of:
(a) An acquisition (other than directly from the Company) of any equity
securities of the Company (the "Equity Securities") or of the Company's
wholly-owned
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subsidiary (Sweetheart Cup Company Inc.) by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")) other than American Industrial
Partners Capital Fund, LP or its affiliates or an employee benefit plan
maintained by the Company, immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of Equity Securities representing sixty percent (60%) or
more of the combined value of the Company's or Sweetheart Cup Company
Inc.'s then outstanding Equity Securities; or
(b) The consummation of a merger, consolidation or reorganization
involving the Company where the stockholders of the Company, immediately
before such merger, consolidation or reorganization, fail to own directly
or indirectly immediately following such merger, consolidation or
reorganization, at least sixty (60%) of the combined value of the
outstanding Equity Securities of the corporation resulting from such merger
or consolidation or reorganization.
"Good Reason" means (i) the Executive's duties, authorities,
responsibilities (including reporting authority and responsibility) or title
are materially and adversely modified without the Executive's written consent,
or (ii) the Executive's Base Compensation is reduced, except for reductions of
no more than ten percent (10%) per year applicable to all salaried employees.
"Trust" means that certain trust agreement between the Company and the
Trustee pursuant to which the Company deposits funds for the benefit of the
Executive to satisfy the Company's obligations hereunder.
"Trustee" means the trustee under the Trust Agreement.
SECTION III.
BENEFIT AMOUNT
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The Executive's Account will be credited with an amount representing one
year's current Base Salary. The Executive's Account will be credited with
additional amounts to reflect any increase in the Executive's Base Salary
occurring during the term of this Agreement. The Executive's Account will be
invested in accordance with the terms hereof.
SECTION IV.
BENEFITS
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4.1 The Executive may direct the Trustee, at such times and in accordance
with such procedures as the Trustee provides, as to the investment of the
Executive's Account. The investment options available to the Executive shall be
selected by the Company and shall include a large capitalization equity fund, a
small capitalization equity fund, a bond fund and a money market fund
maintained by either Vanguard or Fidelity Investments, and such other
investments as the Company permits.
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4.2 In the event that the Executive's Account cannot be invested in a
particular mutual fund chosen by the Company, the Company shall select a
replacement fund that is comparable, in the Company's reasonable judgement, to
the fund into which future investment of the Executive's Account is no longer
possible. The Company shall communicate, in writing to the Trustee of any
changes to the available investment options.
4.3 As soon as practical after the Executive's Account vests in accordance
with the terms of this Section 4, the Executive's Account shall be entitled to
a distribution of the then value of his Account under the Trust and the Trustee
shall distribute to the Executive (or in the event of his death, his
Beneficiary) either the investments held in the Account in kind or the proceeds
resulting from the liquidation of the investment in the Executive's Account
under the Trust.
4.4 The Executive's Account shall become fully vested as of the date of
the first to occur:
(i) the second anniversary of the date of this Agreement, provided the
Executive remains continuously employed by the Company or Sweetheart Cup
Company Inc. up to and including the second anniversary of the date of
this Agreement;
(ii) the Executive dies or becomes Disabled for reasons directly
related to the Executive's position or duties with the Company;
(iii) after six months following an Equity Sale;
(iv) after six months following a Change of Control; or
(v) the Executive's employment is terminated by the Company for
reasons other than for Cause or by the Executive with Good Reason.
4.5 In the event that the Executive dies or becomes Disabled for reasons
that are not directly related to the Executive's position or duties with the
Company prior to the occurrence of one of the events described in Section 4.4
hereof, the Executive shall become vested in a proportionate part of the
Executive's Account, determined by multiplying the Executive's Account by a
fraction, the numerator of which is the number of months and partial months
that have elapsed since the date of this Agreement and the denominator of which
is 24 months.
4.6 In the event that the Executive ceases to be employed by the Company
or Sweetheart Cup Company Inc. prior to the time that such Executive's Account
vests in accordance with Section 4.4 or Section 4.5 hereof, the portion of the
Executive's Account that is not vested will be forfeited and, within a
reasonable time after the Executive ceases to be an
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employee of the Company, the Trustee shall pay the balance of the Executive's
Account to the Company.
SECTION V.
ESTABLISHMENT OF THE TRUST
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5.1 Company shall establish the Trust with the Trustee and will deposit
with Trustee in trust the amounts specified in Section III hereof.
5.2 The Trust hereby established shall be irrevocable.
5.3 The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of Company and shall be used exclusively
for the purpose of paying benefits to the Executive. The principal of the Trust
and any earnings thereon shall not be used to satisfy the claims of the
Company's general creditors.
SECTION VI.
PAYMENTS TO EXECUTIVE OR HIS BENEFICIARIES
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6.1 The Trustee shall make payments to the Executive or his Beneficiary in
accordance with the terms and conditions of this Agreement and the Trust. Prior
to making any payment to the Executive or his Beneficiary, the Trustee shall
provide the Company with at least ten (10) days prior written notice of such
proposed payment and the Company shall have a period of five (5) days following
receipt of such notice (which shall be deemed to be received three (3) days
following the date such notice is mailed by first class U.S. mail, on the day
after such notice is deposited with an overnight carrier, the date of hand
delivery or the date on which notice is transmitted by facsimile) to provide
the Trustee in writing with a notice of its objection to such proposed payment.
If the Trustee receives from the Company a timely notice of objection, the
matter shall promptly be submitted to arbitration in accordance with Section
VIII hereof. No payment shall be made until decision on the arbitration has
been made and then payment will be made in accordance with such decision. If
the Trustee fails to receive a timely notice of objection from the Company, the
Trustee may proceed with the proposed payment. The Company shall report all
distributions from the Trust to appropriate taxing authorities. The Trustee
shall cooperate with the Company in making provision for the withholding of any
federal, state or local taxes that may be required to be withheld with respect
to the payment of benefits pursuant to the terms of this Agreement and shall
pay amounts withheld to the appropriate taxing authorities.
6.2 The entitlement of Executive or his Beneficiary to benefits under this
Agreement shall initially be determined by the Trustee or such party as it
designates, except in the event that the Company files a notice of objection to
payment in accordance with Section 6.1 hereof, in which event such
determination shall be made by the arbitrators in accordance with Section VIII
hereof.
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6.3 No benefit which shall be payable under this Agreement to any person
shall be subject in any manner to alienation, sale, transfer, assignment,
pledge, encumbrance or charge, and any attempt to alienate, sell, transfer,
assign, pledge, encumber or charge the same shall be void; and no such benefit
shall in any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements or torts of any person, nor shall it be subject to
attachment or legal process for, or against, such person except to such extent
as may be required by law.
6.4 Whenever any benefit which shall be payable under this Agreement is to
be paid to or for the benefit of any person who is then a minor or determined
to be incompetent by qualified medical advice, the Company or the Trustee need
not require the appointment of a guardian or custodian, but shall be authorized
to pay the same over to the person having custody of such minor or incompetent,
or to cause the same to be paid to such minor or incompetent without the
intervention of a guardian or custodian, or to cause the same to be paid to a
legal guardian or custodian of such minor or incompetent if one has been
appointed or to cause the same to be used for the benefit of such minor or
incompetent.
SECTION VII.
AMENDMENT OF TERMINATION
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7.1 This Agreement may not be amended except by a written instrument
executed by the Company and Executive.
7.2 The Trust shall not terminate until the date on which the Executive or
his Beneficiaries are no longer entitled to benefits pursuant to the terms of
the Agreement. Upon termination of the Trust any assets remaining in the Trust
shall be returned to Company.
SECTION VIII.
SETTLEMENT OF DISPUTES
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Any dispute arising under this Agreement shall be submitted to binding
arbitration initiated in accordance with the rules of the American Arbitration
Association in Baltimore, Maryland. The results of such proceedings shall be
conclusive and shall not be subject to judicial review. The Company agrees to
pay the entire cost of any arbitration or legal proceeding arising from any
dispute hereunder, including the legal fees of the Trustee and the Executive or
beneficiary, regardless of the outcome of any such proceeding, unless the
arbitrators or the court hearing such proceeding determines that the
Executive's or beneficiary's claim was submitted in bad faith, in which event
the Company shall not pay any legal fees and expenses of the Executive or
beneficiary.
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SECTION IX.
LIMITATION OF RIGHTS
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This Agreement shall not give the Executive any right or claim except to
the extent that such right is specifically fixed under the terms of the
Agreement.
SECTION X.
MISCELLANEOUS
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To the extent not preempted by applicable federal law, this Agreement is
governed by and construed in accordance with the lows of the State of Maryland.
IN WITNESS WHEREOF, the Company has executed this document as of the 1st
day of October, 1997.
SWEETHEART HOLDINGS INC.
By: /s/ Xxxxxxx X. XxXxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive
Officer
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ATTEST:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Title: Corporate Secretary
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[CORPORATE SEAL]
EXECUTIVE:
Name: /s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
Address: 0000 Xxxx Xxxxxx Xxxxx
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Xxxxxxxx, Xxxxxxxx 00000
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