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EXHIBIT 10.35
EMPLOYEE AGREEMENT
THIS EMPLOYEE AGREEMENT (this "Agreement"), made and entered into this
25th day of January, 2000, by and between Xxxx X. Xxxxxxx (the "Employee") and
United States Can Company, a Delaware Corporation (the "Employer") having its
principal offices at 000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000.
WITNESSETH THAT:
WHEREAS, the Employee is entrusted with knowledge of the Employer's and
Affiliates' particular business methods and is trained and instructed in the
Employer's and Affiliates' particular operations methods;
WHEREAS, the Employee is entrusted with one or more of the following:
manufacturing technology; operating procedures; purchasing information; cost
data; price data; and customer-specific information and data; and
WHEREAS, entering into this Agreement is a condition of one or more of
the following: (i) employment with Employer or one of its Affiliates; (ii)
entering into an employment-related agreement with the Employer or one of its
Affiliates of even date herewith and (iii) eligibility for participation in the
Employer's Executive Severance Plan;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Restrictive Covenants. During the term of employment and for a
period of 24 months, or for a period of time equal to the length of the
Employee's tenure with the Employer (if such tenure is less than 24 months),
after the employment relationship has been terminated for any reason, the
Employee will not: (a) directly or indirectly on behalf of any other individual
or entity, solicit or provide any services also provided by the Employer or any
Affiliate to any individual or entity who is then or was at any time a client of
the Employer and for whose account the Employee was responsible, in whole or in
part, at any time during the Employee's tenure with the Employer and the
Affiliates; or (b) directly or indirectly, own, manage, operate, control, be
employed by, participate in, or be connected in any manner with the ownership,
management, operation, or control of any business of the type and character in
which the Employee was engaged on behalf of the Employer or any Affiliate which
operates in North America, South America or Europe. At all times during and
after employment with the Employer, the Employee will not use or disclose any
trade secret of the Employer or any Affiliate or any proprietary or confidential
information or data of the Employer or any Affiliate, including, without
limitation, the Employer's or Affiliate's manufacturing technology, cost data,
price data, customer lists, customer information and the other matters specified
in paragraph 3, for the Employee's personal benefit, directly or indirectly, or
in any way which could be detrimental to the Employer or any Affiliate. For
purposes of this Agreement, the term "Affiliate" shall mean the Employer and any
of its "affiliates" as that term is defined in the Securities Exchange Act of
1934, as amended.
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2. Change in Control. If the Employee's employment is terminated on or
after the date of a Change in Control, the provisions of paragraphs 1(a) and
1(b) shall be canceled and shall be without effect for periods after the date of
the Employee's termination with the Employer and the Affiliates. For purposes of
this Agreement, the term "Change in Control" shall mean any one or more of the
following: the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of a block of thirty percent (30%) or more of
the shares of the then outstanding common stock of U.S. Can Corporation (the
"Outstanding Common Stock"), a merger or consolidation of U.S. Can Corporation
in which U.S. Can Corporation does not survive as an independent public company,
a sale of all or substantially all of the assets of U.S. Can Corporation, a
liquidation or dissolution of U.S. Can Corporation or, during any period of two
(2) consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of U.S. Can Corporation cease for any reason
to constitute at least a majority thereof unless the election, or the nomination
for election by U.S. Can Corporation's shareholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period; provided, however, that the
following acquisitions shall not constitute a Change of Control for the purpose
of this Agreement: (A) any acquisition of stock directly from U.S. Can
Corporation, or (B) any acquisition of stock by any employee benefit plan (or
related trust) sponsored or maintained by U.S.
Can Corporation or its affiliates.
3. Employer's Information. The Employer and the Affiliates are in the
business of container manufacturing and related businesses, including, without
limitation, aerosol containers; paint, plastic and general line containers; and
custom and specialty products. The Employee acknowledges that: (i) the
Employer's and the Affiliates' manufacturing technology is highly evolved; (ii)
the Employer's and the Affiliates' purchasing practices and cost data are not
generally known in the packaging industry; (iii) the Employer and the Affiliates
have a proprietary interest in the identity of their customers and their
customer lists and in their efforts to identify potential customers; and (iv)
documents and information regarding the Employer's and the Affiliates'
manufacturing methods, sales, pricing, costs, and the requirements of the
Employer's and the Affiliates' customers are confidential and constitute trade
secrets.
4. Restriction Acknowledgment. The Employee further acknowledges that:
(1) in the event the Employee's employment with the Employer terminates for any
reason, the Employee will be able to earn a livelihood without violating the
restrictive covenants contained in this Agreement; and (2) the Employee's
ability to earn a livelihood without violating such covenants is a material
condition to the Employee's employment by the Employer, entry into an
employment-related agreement and/or eligibility to participate in the Employer's
Executive Severance Plan.
5. Other Agreements. It is expressly understood and agreed that no
change, at any time, in compensation which may be given to the Employee, and no
change, at any time, in the nature of services to be performed by the Employee,
shall amend, impair, or otherwise affect any of this Agreement's terms or
provisions. This Agreement may be amended only by a written document signed by
the parties.
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6. Waiver. Any failure of the Employer to demand rigid adherence to one
or more of this Agreement's terms, on one or more occasions, shall not be
construed as a waiver nor deprive the Employer of the right to insist upon
strict compliance.
7. Severability. If any one or more of the provisions of this Agreement
should be ruled wholly or partially invalid or unenforceable by an arbitrator in
accordance with the procedures set forth in paragraph 16 or a court of competent
jurisdiction, then (i) the validity and enforceability of all provisions of this
Agreement not ruled to be invalid or unenforceable shall be unaffected, and (ii)
the provision(s) held wholly or partially invalid or unenforceable shall be
deemed amended, and such court is authorized to reform the provision(s), to the
minimum extent necessary to render them valid and enforceable in conformity with
the parties' intent as manifested herein.
8. Remedies. If the Employee shall violate or attempt to violate any of
the restrictive covenants contained in this Agreement, then the Employer or the
affected Affiliate shall be entitled, as of right, to an injunction and/or other
equitable relief against the Employee, restraining the Employee from violating
or attempting to violate any of said covenants.
9. Survival. Notwithstanding any employment termination, this Agreement
shall remain a valid and enforceable contract between the parties, including
(without limitation) this Agreement's restrictive covenants.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Employer and its Affiliates and the Employee and
their respective successors and assigns.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois, without regard to its
conflicts of law principles.
12. Warranty/Agreement. Unless previously disclosed to the Employer in
writing, the Employee represents and warrants to the Employer that the Employee
is not a party to any agreement (other than an agreement with an Employer or an
Affiliate) which contains a covenant-not-to-compete or other restriction with
respect to: (i) the nature of any services or business which the Employee is
entitled to perform or conduct for Employer or its Affiliate; or (ii) the
disclosure or use of any information which directly or indirectly relates to the
nature of the business of the Employer and Affiliates or the services to be
rendered by the Employee for Employer or its Affiliate. The Employee agrees not
to use or disclose any confidential or proprietary information or data of any
former employer or other third party in connection with the Employee's
employment by the Employer.
13. Work-For-Hire Provisions. "Inventions" mean all systems,
procedures, techniques, manuals, data bases, plans, lists, inventions, trade
secrets, copyrights, patents, trademarks, discoveries, innovations, concepts,
ideas and software conceived, compiled or developed by the Employee in the
course of employment with the Employer and/or comprised, in whole or part, of
the Employer's and the Affiliates' confidential information. Notwithstanding
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the foregoing, Inventions shall not include (a) any inventions independently
developed by the Employee and not derived, in whole or part, from any Employer
or Affiliate's confidential information, or (b) any invention made by the
Employee prior to the Employee's exposure to any confidential information. The
parties acknowledge and agree that all work performed by the Employee hereunder
shall be deemed "work for hire." The Employer shall at all times own and have
exclusive right, title and interest in and to all Employer and the Affiliates'
confidential information and Inventions, and the Employer shall retain the
exclusive right to license, sell, transfer and otherwise use and dispose of the
same. Any and all enhancements of the Employer's and the Affiliates'
manufacturing technology developed by the Employee shall be the exclusive
property of the Employer. The Employee hereby assigns to the Employer the
Employee's sole and exclusive right, title and interest in and to all
Inventions, without additional consideration of any kind whatsoever from the
Employer or the Affiliates. The Employee agrees to execute and deliver any
instruments or documents and to do all other things (including, without
limitation, the giving of testimony) requested by the Employer (both during and
after the Employee's employment by the Employer) in order to vest more fully in
the Employer or the Affiliates all ownership rights in the Inventions
(including, without limitation, obtaining patent, copyright to trademark
protection therefor in the U.S. and/or foreign countries).
14. Return of Information. Following the Employee's termination of
employment with the Employer and the Affiliates, the Employee agrees to return
to the Employer and the Affiliates any keys, credit cards, passes, confidential
documents or material, or other property belonging to the Employer or the
Affiliates, and to return all writings, files, records, correspondence,
notebooks, notes and other documents and things (including any copies thereof)
containing any trade secrets relating to the Employer and the Affiliates. For
purposes of the preceding sentence, the term "trade secrets" shall have the
meaning ascribed to it under the Illinois Trade Secrets Act or, if such act is
repealed, the Uniform Trade Secrets Act.
15. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be (i) delivered personally, (ii) sent
by certified mail, postage prepaid (provided that international mail shall be
sent via overnight or two-day delivery), (iii) sent by facsimile (provided that
transmission by facsimile shall be effective only if accompanied by depositing a
hard copy for delivery to the address specified below, postage prepaid (in the
case of mailing in the U.S., by U.S. mail, and in the case of mailing outside
the U.S., by mailing via overnight or two-day delivery), or (iv) sent by prepaid
overnight courier to the parties at the addresses set forth below (or such other
addresses as shall be specified by the parties by like notice). Such notices,
demands, claims and other communications shall be deemed given:
(a) in the case of delivery by overnight service with
guaranteed next day delivery, the next day or the day designated for
delivery;
(b) in the case of certified or registered U.S. mail, five
days after deposit in the U.S. mail; or
(c) in the case of facsimile, the date upon which the
transmitting party received confirmation of transmission and deposited
a hard copy of such notice in the mail;
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provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that are
to be delivered by the U.S. mail or by overnight service are to be delivered to
the addresses set forth below:
to the Employer by mail:
United States Can Company
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
to the Employer by facsimile:
630/572-0822
To Employee:
at the address of the Employee as set forth in the payroll records at
the Employer
16. Arbitration of All Disputes. Any dispute as to any claim under this
Agreement (including, without limitation, disputes arising under Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, and the
Age Discrimination in Employment Act) shall be settled by arbitration in
Chicago, Illinois by an arbitrator, who shall be appointed pursuant to the rules
of the American Arbitration Association. The arbitration shall be conducted
promptly and expeditiously in accordance with the National Rules for Resolution
of Employment Disputes of American Arbitration Association. Any award issued as
a result of such arbitration shall be final and binding on the parties, and
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof; provided, however, that any award issued as a
result of arbitration shall be reviewable de novo by a court of competent
jurisdiction for errors of law. Notwithstanding the foregoing, the parties
hereto shall not be entitled to, and no award shall include in whole or in part,
punitive damages or exemplary damages. This paragraph 16 shall not be construed
to limit the Employer's or an Affiliate's right to obtain relief under paragraph
8 with respect to any matter or controversy subject to paragraph 8, and the
Employer shall be entitled to obtain any such relief by direct application to
state, federal, or other applicable court, without being required to first
arbitrate such matter or controversy.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
UNITED STATES CAN COMPANY
By: /s/ Xxxx X. Xxxxx
Its: Chairman and CEO
EMPLOYEE
/s/ Xxxx X. Xxxxxxx
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FOR ILLINOIS EMPLOYEES
EXHIBIT A
N O T I C E
We are required, under the Employee Patent Act, Ill. Rev.
Stat. ch. 140, para. 302 (1987), to provide each employee who enters into an
employment agreement containing a "work-for-hire" provision with a written
notification of the following:
The agreement does not apply to an invention for which no
equipment, supplies, facility, or trade secret information of
the employer was used and which was developed entirely on the
employee's own time, unless (a) the invention relates (i) to
the business of the employer, or (ii) to the employer's actual
or demonstrably anticipated research or development, or (b)
the invention results from any work performed by the employee
for the employer.
Please acknowledge that you have received a copy of this Notice as of January
25, 2000, by signing below.
EMPLOYEE
/s/ Xxxx X. Xxxxxxx
Print Name: Xxxx X. Xxxxxxx
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