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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
"Agreement "), dated as of January 9, 2009, is entered
into between Jarden Corporation, a Delaware corporation (the
"Company ") and David Tolbert (the "Employee ").
WITNESSETH :
WHEREAS, the Company and the Employee are parties to an
Employment Agreement entered into as of January 1, 2002 (the "
Employment Agreement "); and
WHEREAS, the Company desires to continue to employ Employee as
Senior Vice President, Human Resources and Corporate Risk of the
Company on the terms and conditions hereinafter set forth; and
WHEREAS, Employee is willing to continue to be employed as
Senior Vice President, Human Resources and Corporate Risk of the
Company on such terms and conditions; and
WHEREAS, the Company and Employee desire to enter into this
Agreement which shall amend, restate and replace the Employment
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Company and the
Employee hereby agree as follows:
1. Employment . The Company hereby continues to employ
the Employee as Senior Vice President, Human Resources and
Corporate Risk of the Company, and the Employee accepts such
employment, upon the terms and subject to the conditions set forth
in this Agreement. Notwithstanding the foregoing, it is understood
and agreed that the Employee from time to time may (a) be
appointed to additional offices or to different offices than those
set forth above provided they are within a fifty mile radius of the
current Daleville, Indiana, location, (b) perform such duties
other than those set forth herein, and/or (c) relinquish one
or more of such offices or other duties, as may be mutually agreed
by and between the Company and the Employee; and, that no such
action shall be deemed or construed to otherwise amend or modify
any of the remaining terms or conditions of this Agreement.
2. Term . The term of this Agreement shall be two
(2) years, commencing on the date hereof and ending on the
second anniversary of such date (the " Initial Term "),
subject to earlier termination pursuant to the provisions of
Section 10. The employment of the Employee shall automatically
continue hereunder following the Initial Term for successive one
(1) year periods (the " Renewal Terms ") unless the
Company or the Employee gives written notice to the other at least
(90) ninety days prior to the end of the Initial Term.
Subsequent to the Initial Term, the employment of the Employee
hereunder may be terminated at the end of any Renewal Term by
delivery by either the Employee or the Company of a written notice
to the other party at least (90) ninety days prior to the end
of any Renewal Term.
3. Duties . During the term of this
Agreement, the Employee shall, subject to the provisions of
Section 1 above, serve as Senior Vice President, Human
Resources and Corporate Risk of the Company and shall perform all
duties commensurate with his position that may be assigned to him
by the Chief Executive Officer of the Company and/or by the Board
of Directors of the Company consistent with such position. The
Employee shall devote substantially all of his time and energies to
the business and affairs of the Company and shall use his best
efforts, skills and abilities to promote the interests of the
Company as necessary to diligently and competently perform the
duties of his position.
4. Compensation and Benefits . During the term of this
Agreement, the Company shall pay to the Employee, and the Employee
shall accept from the Company, as compensation for the performance
of services under this Agreement and the Employee’s
observance and performance of all of the provisions hereof, a
salary of $325,000 per year (the "Base Compensation "). The
Base Compensation shall be reviewed annually. In addition, the
Employee shall be eligible for a bonus package based on
performance. The bonus program shall give the Employee the
opportunity to earn 50% of Base Compensation each year for
achieving the Company’s earnings per share budget and 100% of
Base Compensation for achieving earnings per share 10% higher than
budget. The decision as to whether to pay the Employee a bonus, as
well as the amounts and terms of any such bonus package, shall be
determined by the Compensation Committee of the Board of Directors
as part of its annual budget review process.
The Employee’s salary shall be payable in accordance with
the normal payroll practices of the Company and shall be subject to
withholding for applicable taxes and other amounts. Any bonus
earned for any year shall be paid to the Employee in the year
following the year in which the bonus targets noted above are
achieved at the same time as bonuses are paid to other similarly
situated executives of the Company, but in no event later than
March 15 of such year and shall be subject to withholding for
applicable taxes and other amounts. During the term of this
Agreement, the Employee shall be entitled to participate in or
benefit from, in accordance with the eligibility and other
provisions thereof, such medical, insurance, and other fringe
benefit plans or policies as the Company may make available to, or
have in effect for, its personnel with commensurate duties from
time to time. The Company retains the rights to terminate or alter
any such plans or policies from time to time. The Employee shall
also be immediately entitled to vacations, sick leave and other
similar benefits in accordance with policies of the Company from
time to time in effect for personnel with commensurate duties.
5. Reimbursement of Business Expenses . During the term
of this Agreement, upon submission of proper invoices, receipts or
other supporting documentation satisfactory to the Company and in
specific accordance with such guidelines as may be established from
time to time by the Company, the Employee shall be reimbursed by
the Company for all reasonable business expenses actually and
necessarily incurred by the Employee on behalf of the Employer in
connection with the performance of services under this
Agreement.
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6. Representation of Employee . The
Employee represents and warrants that that he is not party to, or
bound by, any agreement or commitment, or subject to any
restriction, including but not limited to agreements related to
previous employment containing confidentiality or non compete
covenants, which in the future may have a possibility of adversely
affecting the business of the Company or the performance by the
Employee of his material duties under this Agreement.
7. Confidentiality . (For purposes of this
Section 7, all references to the Company shall be deemed to
include the Company’s subsidiary corporations.)
(a) Confidential Information . The Employee acknowledges
that he will have knowledge of, and access to, proprietary and
confidential information of the Company, including, without
limitation, inventions, trade secrets, technical information,
know-how, plans, specifications, methods of operations, financial
and marketing information and the identity of customers and
suppliers (collectively, the "Confidential Information "),
and that such information, even though it may be contributed,
developed or acquired by the Employee, constitutes valuable,
special and unique assets of the Company developed at great expense
which are the exclusive property of the Company. Accordingly, the
Employee shall not, either during or subsequent to the term of this
Agreement, use, reveal, report, publish, transfer or otherwise
disclose to any person, corporation or other entity, any of the
Confidential Information without the prior written consent of the
Company, except to responsible officers and employees of the
Company and other responsible persons who are in a contractual or
fiduciary relationship with the Company and who have a need for
such information for purposes in the best interests of the Company,
and except for such information which is or becomes of general
public knowledge from authorized sources other than the Employee.
The Employee acknowledges that the Company would not enter into
this Agreement without the assurance that all such confidential and
proprietary information will be used for the exclusive benefit of
the Company.
(b) Return of Confidential Information . Upon the
termination of Employee’s employment with the Company, the
Employee shall promptly deliver to the Company all drawings,
manuals, letters, notes, notebooks, reports and copies thereof and
all other materials relating to the Company’s business.
8. Noncompetition . (For purposes of this Section 8,
all references to the Company shall be deemed to include the
Company’s subsidiary corporations). During the term set forth
below, the Employee will not utilize his special knowledge of the
business of the Company and his relationships with customers and
suppliers of the Company to compete with the Company. During the
term of this Agreement and for a period of twenty-four
(24) months after the expiration or termination of this
Agreement, the Employee shall not engage, directly or indirectly or
have an interest, directly or indirectly, anywhere in the United
States of America or any other
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geographic area where the Company does business
or in which its products are marketed, alone or in association with
others, as principal, officer, agent, employee, capital, lending of
money or property, rendering of services or otherwise, in any
business directly competitive with or similar to that engaged in by
the Company (it being understood hereby, that the ownership by the
Employee of 2% or less of the stock of any company listed on a
national securities exchange shall not be deemed a violation of
this Section 8). During the same period, the Employee shall
not, and shall not permit any of his employees, agents or others
under his control to, directly or indirectly, on behalf of himself
or any other person, (i) call upon, accept business from, or
solicit the business of any person who is, or who had been at any
time during the preceding two years, a customer of the Company or
any successor to the business of the Company, or otherwise divert
or attempt to divert any business from the Company or any such
successor, or (ii) directly or indirectly recruit or otherwise
solicit or induce any person who is an employee of, or otherwise
engaged by, the Company or any successor to the business of the
Company to terminate his or her employment or other relationship
with the Company or such successor.
9. Remedies . The restrictions set forth in
Section 7 and 8 are considered by the parties to be fair and
reasonable. The Employee acknowledges that the Company would be
irreparably harmed and that monetary damages would not provide an
adequate remedy in the event of a breech of the provisions of
Section 7 or 8. Accordingly, the Employee agrees that, in
addition to any other remedies available to the Company, the
Company shall be entitled to seek injunctive and other equitable
relief to secure the enforcement of these provisions. If any
provisions of Sections 7, 8 or 9 relating to the time period, scope
of activities or geographic area of restrictions is declared by a
court of competent jurisdiction to exceed the maximum permissible
time period, scope of activities or geographic area, as the case
may be, shall be provisions of Section 7, 8 or 9 other than
those described in the preceding sentence are adjudicated to be
invalid or unenforceable, the invalid or unenforceable provisions
shall
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