Exhibit 10.21
AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 dated as of
December ______, 2003, between XXXXX
PLASTICS CORPORATION, a Delaware
corporation (the "Corporation"), and
XXXXXXX X. XXXXXXXX (the "Employee").
Reference is made to the Employment Agreement dated as of August
14, 2000, (the "Employment Agreement"), between the Corporation and the
Employee. The Corporation and the Employee desire to modify, amend and extend
the term of the Employment Agreement, and to such end, the Employment Agreement
is hereby deleted in its entirety and replaced with the following terms and
conditions:
The Employee is an employee of the Corporation and as such has
substantial experience that has value to the Corporation. The Corporation
desires to employ the Employee, and the Employee desires to accept such
employment, on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto agree as
follows:
1. EMPLOYMENT; EFFECTIVENESS OF AGREEMENT. Effective as of January
1, 2004 (such date, the "Commencement Date," for all purposes hereof), the
Corporation shall employ the Employee, and the Employee shall accept employment
by the Corporation, upon the terms and conditions hereinafter set forth.
2. RESERVED.
3. TERM. Subject to earlier termination as provided herein, the
employment of the Employee hereunder shall commence on the Commencement Date
and terminate on December 31, 2008. Such period of employment is hereinafter
referred to as the "Employment Period."
4. DUTIES. During the Employment Period, the Employee shall be
employed by the Corporation as Executive Vice President and General Manager -
Closures and shall perform such duties and services consistent with such
position as may reasonably be assigned to the Employee by the officers of the
Corporation or their designees.
5. TIME TO BE DEVOTED TO EMPLOYMENT. Except for vacation, absences
due to temporary illness and absences resulting from causes set forth in
Section 7, the Employee shall devote the Employee's business time, attention
and energies on a full-time basis to the performance of the duties and
responsibilities referred to in Section 4. The Employee shall not during the
Employment Period be engaged in any other business activity which, in the
reasonable judgment of the officers of the Corporation, would conflict with the
ability of the Employee to perform his or her duties under this Agreement,
whether or not such activity is pursued for gain, profit or other pecuniary
advantage.
6. COMPENSATION; BENEFITS; REIMBURSEMENT.
(A)BASE SALARY. During the Employment Period, the
Corporation shall pay to the Employee an annual base salary of $278,567, which
shall be subject to review and, at the option of persons having authority
regarding such matters at the Corporation, 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
Corporation with respect to employees of the Corporation 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
Corporation (the "Programs") generally available from time to time to employees
of the Corporation 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 (together with the Programs, the "Benefit
Arrangements") as are generally made available from time to time to other
employees of the Corporation at substantially the same level of employment as
the Employee. In addition, the Employee shall be entitled to four weeks of
vacation per year.
(D)REIMBURSEMENT OF EXPENSES. During the Employment Period,
the Corporation shall reimburse the Employee, in accordance with the policies
and practices of the Corporation in effect from time to time with respect to
other employees of the Corporation 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 Corporation in
connection with the performance of his duties hereunder upon presentation by
the Employee to the Corporation of appropriate documentation therefor.
(E)DEDUCTIONS. The Corporation shall deduct from any
payments to be made by it to the Employee under this Section 6 or Section 9 any
amounts required to be withheld in respect of any Federal, state or local
income or other taxes.
7. DISABILITY OR DEATH OF THE EMPLOYEE.
(a)If, during the Employment Period, the Employee is
incapacitated or disabled by accident, sickness or otherwise (hereinafter, a
"Disability") so as to render the Employee mentally or physically incapable of
performing the services required to be performed under this Agreement for 90
days in any period of 360 consecutive days, the Corporation may, at any time
thereafter, at its option, terminate the employment of the Employee under this
Agreement immediately upon giving the Employee notice to that effect, it being
understood that upon such termination the Employee shall be eligible for the
disability benefits provided by the Corporation.
(b)If the Employee dies during the Employment Period, the
Termination Date (as defined below) shall be deemed to be the date of the
Employee's death.
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8. TERMINATION.
(a)The Corporation may terminate the employment of the
Employee and all of the Corporation's obligations under this Agreement (except
as hereinafter provided) at any time for "cause" by giving the Employee notice
of such termination, with reasonable specificity of the grounds therefor. For
the purposes of this Section 8, "cause" shall mean (i) willful misconduct with
respect to the business and affairs of the Corporation 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
Corporation policy, (ii) material breach of any of the provisions of this
Agreement or (iii) conviction for a crime involving moral turpitude or fraud.
A termination pursuant to this Section 8(a) shall take effect immediately upon
the giving of the notice contemplated hereby.
(b)The Corporation may terminate the employment of the
Employee and all of the Corporation's obligations under this Agreement (except
as hereinafter provided) at any time during the Employment Period without
"cause" by giving the Employee written notice of such termination, to be
effective 30 days following the giving of such written notice.
(c)The Employee may terminate the employment of the Employee
hereunder at any time during the Employment Period by giving the Corporation at
least 30 days' prior written notice of such termination, such termination to be
effective on the date specified in such notice, whereupon all of the
Corporation's obligations hereunder shall terminate (except as hereinafter
provided). For convenience of reference, the date upon which any termination
of the employment of the Employee pursuant to Section 7 or 8 hereof shall be
effective shall be hereinafter referred to as the "Termination Date."
9. EFFECT OF TERMINATION OF EMPLOYMENT.
(A)TERMINATION FOR CAUSE. Upon the effective date of
termination of the Employee's employment pursuant to Section 7, Section 8(a) or
Section 8(c) hereof, neither the Employee nor the Employee's beneficiaries or
estate shall have any further rights under this Agreement or any claims against
the Corporation arising out of this Agreement, except the right to receive,
within 30 days of the Termination Date:
(i)the unpaid portion of the Base Salary provided for
in Section 6(a), computed on a pro rata basis to the Termination
Date;
(ii)reimbursement for any expenses for which the
Employee shall not have theretofore been reimbursed, as provided in
Section 6(d); and
(iii) the unpaid portion of any amounts earned by the
Employee prior to the Termination Date pursuant to any Benefit
Arrangement; provided, however, unless specifically provided
otherwise in this Section 9, the Employee shall not be entitled to
receive any benefits under a Benefit Arrangement that have accrued
during a fiscal year if the terms of such Benefit Arrangement
require that the beneficiary be employed by the Corporation as of
the end of such fiscal year.
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(B)TERMINATION WITHOUT CAUSE PRIOR TO CHANGE OF CONTROL. Upon
the termination of the Employee's employment pursuant to Section 8(b) prior to
the consummation of a Change of Control (as defined in Section 9(d)(i)),
neither the Employee nor the Employee's beneficiaries or estate shall have any
further rights under this Agreement or any claims against the Corporation
arising out of this Agreement, except the right to receive:
(i)the payments, if any, referred to in Section 9(a);
(ii)the pro-rata portion of the applicable bonus
provided for in Section 6(b) computed on a pro-rata basis to the
Termination Date, payable at the same time and in the same manner
only as, if and when bonuses are paid to other employees of the
Corporation of comparable seniority; and
(iii) in addition to the amounts computed pursuant to
Sections 9(b)(i) and (ii), the Employee shall have the right to
receive as severance compensation an amount equal to the greater of
(A) 100% of one year's Base Salary (as 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 Employee's employment not been terminated;
provided further however, in the event that, at any time after the
expiration of the Employment Period, the Employee is terminated
pursuant to Section 8(b), the Company shall pay the amounts payable
to pursuant to this Section 9(b)(iii) to the Employee as if the
expiration of the Employment Period had not occurred.
(C)TERMINATION WITHOUT CAUSE AFTER CHANGE OF CONTROL. Upon
the termination of the Employee's employment pursuant to Section 8(b) or a
Resignation for Good Reason (as hereinafter defined) occurring after the
consummation of a Change of Control, neither the Employee nor his estate or
beneficiaries shall have any further rights or claims against the Corporation
under this Agreement except the right to receive:1
(i)the payments, if any, referred to in Section 9(a);
(ii)the pro-rata portion of the applicable bonus
provided for in Section 6(b) computed on a pro-rata basis to the
Termination Date, payable at the same time and in the same manner
only as, if and when bonuses are paid to other employees of the
Corporation of comparable seniority; and
(iii) an amount equal to the greater of (A) the
Employee's Base Salary (as of the Termination Date) to be paid
until the later to occur of (x) the second anniversary of the date
upon which the Change of Control occurred, and (y) the first
anniversary of the Termination Date, or (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 Corporation (and its predecessors-in-interest); the amount
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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 Employee's
employment not been terminated; provided further however, in the
event that, at any time after the expiration of the Employment
Period, the Employee is terminated pursuant to Section 8(b), the
Company shall pay the amounts payable to pursuant to this Section
9(c)(iii) to the Employee as if the expiration of the Employment
Period had not occurred.
(D)DEFINITIONS. For purposes of this Section 9, the
following definitions shall apply:
(i)"Change of Control" means (i) the sale of all or
substantially all of the assets of the Corporation or BPC Holding
Corporation ("BPC"), (ii) a sale of more than 50% of the
outstanding voting shares of the Corporation or BPC in a non-public
sale to persons who are not affiliates of the shareholders of BPC
prior to the closing, or (iii) any merger or consolidation of the
Corporation or BPC immediately after which a majority of the
outstanding voting shares of the surviving entity are not held by
persons who held a majority of such shares of BPC immediately prior
to such transaction.
(ii)"Resignation for Good Reason" means the Employee's
resignation after the date in which a Change of Control has
occurred as a result of Employee's reassignment to an office
location greater than 25 miles from the office location Employee
utilized as of the date on which a Change of Control occurred.
(E)SURVIVAL. The Employee's obligations under Sections 10,
11 and 12 of this Agreement, and the Corporation's obligations under Section 9,
shall survive the termination of this Agreement and the termination of the
Employee's employment hereunder.
10.DISCLOSURE OF INFORMATION.
(a)From and after the date hereof, the Employee shall not use
or disclose to any person, firm, corporation or other business entity (other
than any officer, director, employee, affiliate or representative of the
Corporation), except as required in connection with the performance of the
Employee's duties under and in compliance with the terms of this Agreement and
as required by law or judicial process, any Confidential Information (as
hereinafter defined) for any reason or purpose whatsoever, nor shall the
Employee make use of any of the Confidential Information for the Employee's
purposes or for the benefit of any person or entity except the Corporation or
any subsidiary thereof.
(b)For purposes of this Agreement, "Confidential Information"
shall mean (i) the Intellectual Property Rights (as hereinafter defined) of the
Corporation and its subsidiaries and (ii) all other information of a
proprietary nature relating to the Corporation or any subsidiary thereof, or
the business or assets of the Corporation or any such subsidiary, including,
without limitation, books, records, customer and registered user lists, vendor
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lists, supplier lists, distribution channels, pricing information, cost
information, marketing plans, strategies, forecasts, financial statements,
budgets and projections, other than information which is generally within the
public domain at the time of the receipt thereof by the Employee or at the time
of use or disclosure of such Confidential Information by the Employee other
than as a result of the breach by the Employee of the Employee's agreement
hereunder.
(c)As used herein, the term "Intellectual Property Rights"
means all industrial and intellectual property rights, including, without
limitation, patents, patent applications, patent rights, trademarks, trademark
applications, trade names, service marks, service xxxx applications,
copyrights, copyright applications, know-how, certificates of public
convenience and necessity, franchises, licenses, trade secrets, proprietary
processes and formulae, inventions, development tools, marketing materials,
trade dress, logos and designs and all documentation and media constituting,
describing or relating to the above, including, without limitation, manuals,
memoranda and records.
11.RESTRICTIVE COVENANTS.
(a)The Employee acknowledges and recognizes that during the
Employment Period he will be privy to Confidential Information and further
acknowledges and recognizes that the Corporation 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 described
in Section 9(b)(i), if any), without the prior written consent of the
Corporation, the Employee shall not, at any time during the employer/employee
relationship between the Corporation and the Employee and until the later to
occur of May 9, 2002 or the first anniversary of the termination of such
employer/employee relationship, (i) directly or indirectly engage in, represent
in any way, or be connected with, any Competing Business directly competing
with the business of the Corporation or any direct or indirect subsidiary or
affiliate thereof within the state in which the Employee is employed or any
other state of the United States, whether such engagement shall be as an
officer, director, owner, employee, partner, affiliate or other participant in
any Competing Business (as hereinafter defined), (ii) assist others in engaging
in any Competing Business in the manner described in clause (i) above, (iii)
induce other employees of the Corporation or any direct or indirect subsidiary
or affiliate thereof to terminate their employment with the Corporation or any
such direct or indirect subsidiary or affiliate or to engage in any Competing
Business or (iv) induce any entity or person with which the Corporation or any
direct or indirect 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, or in any country or
province outside 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 Corporation or any direct or indirect
subsidiary thereof, (B) any of the products manufactured, sold or distributed
by the Corporation or any direct or indirect subsidiary thereof or (C) any
products or business being developed or conducted by the Corporation or any
direct or indirect subsidiary thereof.
(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 Corporation or any subsidiary or affiliate thereof, but he
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nevertheless believes that he has received and will receive sufficient
consideration and other benefits as an employee of the Corporation 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.
12.RIGHT TO INVENTIONS. The Employee shall promptly disclose,
grant and assign to the Corporation for its sole use and benefit any and all
inventions, improvements, technical information and suggestions reasonably
relating to the business of the Corporation or any subsidiary or affiliate
thereof (collectively, the "Inventions") which the Employee may develop or
acquire during the period of the employer/employee relationship between the
Corporation and the Employee (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 Corporation, and the Corporation 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 Corporation any rights
the Employee may have in or acquire to the Inventions;
(c)the Employee shall, at the expense of the Corporation,
promptly execute and deliver such applications, assignments, descriptions and
other instruments as may be necessary or proper in the opinion of the
Corporation to vest title to the Inventions and any patent applications,
patents, copyrights, reissues or other proprietary rights related thereto in
the Corporation 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 Corporation, 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 Corporation may be involved relating
to the Inventions.
13.MISCELLANEOUS PROVISIONS.
(A)ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
other agreements referred to herein contain the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and
supersede all prior agreements or understandings between the parties with
respect thereto. This Agreement shall not be altered or otherwise amended
except pursuant to an instrument in writing signed by each of the parties
hereto.
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(B)DESCRIPTIVE HEADINGS. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provisions of this Agreement.
(C)NOTICES. All notices or other communications pursuant to
this Agreement shall be in writing and shall be deemed to be sufficient if
delivered personally, telecopied, sent by nationally-recognized, overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i)if to the Corporation, to:
Xxxxx Plastics Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Boots
Telecopier: (000) 000-0000;
(ii)if to the Employee, to him or her at:
Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxx 00000
All such notices and other communications shall be deemed to have been
delivered and received (A) in the case of personal delivery, on the date of
such delivery, (B) in the case of delivery by telecopy, on the date of such
delivery, (C) in the case of delivery by nationally-recognized, overnight
courier, on the Business Day following dispatch, and (D) in the case of
mailing, on the third Business Day following such mailing. As used herein,
"Business Day" shall mean any day that is not a Saturday, Sunday or a day on
which banking institutions in New York, New York are not required to be open.
(D)COUNTERPARTS. This Agreement may be executed in any
number of counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
(E)GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Indiana applicable to contracts made
and performed wholly therein.
(F)BENEFITS OF AGREEMENT; ASSIGNMENT. The terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns, representatives,
heirs and estate, as applicable. Anything contained herein to the contrary
notwithstanding, this Agreement shall not be assignable by any party hereto
without the consent of the other party hereto.
(G)WAIVER OF BREACH. The waiver by either party of a breach
of any provision of this Agreement by the other party must be in writing and
shall not operate or be construed as a waiver of any subsequent breach by such
other party.
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(H)SEVERABILITY. 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.
(I)REMEDIES. All remedies hereunder are cumulative, are in
addition to any other remedies provided for by law and may, to the extent
permitted by law, be exercised concurrently or separately, and the exercise of
any one remedy shall not be deemed to be an election of such remedy or to
preclude the exercise of any other remedy. The Employee acknowledges that in
the event of a breach of any of the Employee's covenants contained in Sections
11, 12 or 13, the Corporation shall be entitled to immediate relief enjoining
such violations in any court or before any judicial body having jurisdiction
over such a claim.
(J)SURVIVAL. Sections 9 through 12, this Section 13 and the
defined terms used in any section referred to in this Section 13(j), shall
survive the termination of the Employee's employment on the Termination Date
and the expiration of this Agreement.
* * * *
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IN WITNESS WHEREOF, the parties have duly executed this Employment
Agreement as of the date first above written.
XXXXX PLASTICS CORPORATION
By:_________________________________
Xxx X. Boots
President & Chief Executive Officer
____________________________________
Xxxxxxx X. Xxxxxxxx
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