Exhibit 10.4
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”), dated as of May 24, 2007, is entered
into between Jarden Corporation, a Delaware corporation (the
“Company”) and John E. Capps, (the
“Employee”).
WITNESSETH:
WHEREAS, the Company desires to
continue to employ the Employee and to be assured of his services
on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to
continue such employment on such terms and conditions.
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 employs the Employee as Senior Vice President, General
Counsel and Secretary 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 Boca Raton, Florida location, (b) perform such duties
other than those set forth above, 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 the 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 part 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, General
Counsel and Secretary 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 or his designee 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 $350,000 per year (the “Base
Compensation”). The Base Compensation shall be reviewed
annually and shall be increased by a minimum of the Consumer Price
Index. 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 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. 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 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.
6. Representation of Employee
. Except as set forth in Paragraph 3 hereof, 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.
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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 Conf
