Exhibit 10.14
EMPLOYMENT
AGREEMENT
Between
GRAHAM PACKAGING HOLDINGS
COMPANY,
GRAHAM PACKAGING COMPANY,
L.P.,
And
The Chief Executive
Officer
Page 1 of 34
Exhibit 10-14
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT dated as of
March 28, 2007 and effective as of December 4, 2006 (the
“Agreement”) among Graham Packaging Holdings Company, a
Delaware limited partnership (“Holdings”), Graham
Packaging Company, L.P., a Delaware limited partnership
(“Limited Partnership”, or “L.P.” or
“Company”), and Warren D. Knowlton
(“Executive”).
WHEREAS, the Company desires to
employ Executive as its Chief Executive Officer and Executive
desires to be employed as the Chief Executive Officer on the terms
and subject to the conditions set forth herein:
NOW, THEREFORE, in consideration of
the promises and the mutual agreements contained herein, the
Company and Executive hereby agree as follows:
ARTICLE 1
DEFINITIONS
The terms set forth below have the
following meanings (such meanings to be applicable to both the
singular and plural forms, except where otherwise expressly
indicated):
1.1. “
Accounting Firm ” - see Exhibit A.
1.2. “
Accrued Base Salary ” means the amount of
Executive’s Base Salary that is accrued but not yet paid as
of the Date of Termination.
1.3. “
Affiliate ” means any Person directly or indirectly
controlling, controlled by, or under direct or indirect common
control with, the Company. For the purposes of this definition, the
term “control” when used with respect to any Person
means the power to direct or cause the direction of management or
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or
otherwise.
1.4. “
Agreement ” - see the recitals to this
Agreement
1.5. “
Agreement Date ” means the effective date that is
specified in the recitals to this Agreement.
1.6. “
Annual Bonus ” - see Section 4.2(a).
1.7. “
Base Salary ” - see Section 4.1.
1.8. “
Beneficial Owner ” means a “beneficial
owner,” as such term is defined in Rule 13d-3 under the
Exchange Act (or any successor rule thereto).
1.9. “
Beneficiary ” - see Section 9.3.
1.10. “
Blackstone ” means collectively, Blackstone Capital
Partners III Merchant Banking Fund L.P., Blackstone Offshore
Capital Partners III L.P. and their Affiliates (other than the
Company and its Subsidiaries).
1.11. “
Board ” means the Board of Directors of the Company
subsequent to the incorporation of the L.P. and the substitution of
it as successor for the L.P. as a party to this Agreement. Prior
thereto, the Board shall mean the General Partner (as defined in
the LP Agreement).
1.12. “
Cause ” means any of the following:
(a) Executive
commits an act of willful misconduct, fraud, embezzlement or
misappropriation against Holdings, the Company or any of its
affiliates or subsidiaries, or shall be convicted by a court of
competent jurisdiction of, or shall plead guilty or nolo
contendere to, any felony or any crime involving moral
turpitude or any crime which is reasonably likely to materially
adversely affect the reputation of Holdings, the Company or
Executive’s ability to perform the duties required under the
Agreement; or
Page 2 of 34
Exhibit 10.14
(b) Executive
commits a material breach of any of the covenants in the Employment
Agreement, which breach has not been remedied within 30 days of
notice thereof by the Company to Executive.
1.13. “
Change of Control ” means any of the following
events:
(a) the
sale or disposition, in one or a series of transactions, of all or
substantially all the assets of the Company to any one or more
“persons” or “groups” (as such terms are
defined or used in Sections 13(d)(3) or 14(d)(2) of
the Exchange Act) other than Blackstone;
(b) before
the effective date of an initial public offering of the equity
securities of the Company (or of its successor after conversion to
a corporation) (the “IPO Date”), representatives of
Blackstone (individually or in the aggregate) cease to comprise a
majority of the Board;
(c) individuals
who, as of the IPO Date, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute a majority of the
members of the Board; provided that any individual who becomes a
Director after the IPO Date whose election or nomination for
election by the Company’s Shareholders was approved by a
majority of the members of the Incumbent Board (other than an
election or nomination of an individual (i) who is not a
representative of Blackstone and (ii) whose initial assumption
of office is in connection with an actual or threatened
“election contest” relating to the election of the
Directors of the Company (as such terms are used in Rule 14a-11
under the Exchange Act), “tender offer” (as such term
is used in Section 14(d) of the Exchange Act) or a
proposed merger) shall be deemed to be members of the Incumbent
Board; or
(d) any
person or group, other than Blackstone, is or becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the
total voting power of the then outstanding voting stock of the
Company (or any entity which controls the Company or which is a
successor to all or substantially all of the assets of the
Company), including by way of merger, consolidation, tender or
exchange offer or otherwise (other than an offering of stock to the
general public through a registration statement filed with the
Securities and Exchange Commission) and representatives of
Blackstone (individually or in the aggregate) cease to comprise a
majority of the Board.
Notwithstanding the foregoing, there
shall not be a Change of Control if, in advance of such event,
Executive agrees in writing that such event shall not constitute a
Change of Control.
1.14. “
Code ” means the Internal Revenue Code of 1986, as
amended from time to time.
1.15. “
Committee ” means the Compensation Committee of the
Board.
1.16. “
Common Stock ” means the common stock of the Company
following its incorporation, and the equivalent L.P. units prior to
its incorporation.
1.17. “
Company ” - see the recitals to this
Agreement.
1.18. “
Company Inventions ” - see
Section 8.2(b).
1.19. “
Date of Termination ” means the effective date of a
Termination of Employment for any reason, including death or
Disability, whether by either the Company or the
Executive.
1.20. “
Director ” means a director of the Company subsequent
to its incorporation or a member of the governing body of the
general partner of the L.P. prior to its incorporation.
1.21. “
Disability ” means the Executive is
“disabled” as determined under Section 409A of the
Code.
1.22. “
Employment Period ” - see Section 3.1.
1.23. “
Exchange Act ” means the Securities Exchange Act of
1934, as amended, or any successors thereto.
1.24. “
Excise Tax ” - see Exhibit A.
1.25. “
Executive ” - see the recitals to this
Agreement.
1.26. “
Extension Date ” - see Section 3.2.
Page 3 of 34
Exhibit 10.14
1.27. “
Good Reason ” means the termination of the
Executive’s employment with the Company within 90 days
following the occurrence, without Executive’s written
consent, of any of the following events:
(a) the
reduction of the Executive’s position from that of Chief
Executive Officer of the Company;
(b) a
decrease in Executive’s base salary or target
bonus;
(c) a
reduction in Executive’s participation in the Company’s
benefit plans and policies to a level materially less favorable to
Executive unless such reduction applies to a majority of senior
level executives;
(d) a
material reduction in (a) agreed level of transportation, (b) York,
Pennsylvania accommodations or (c) remote office support, as
provided in Section 5.6 and 5.7; or
(e) any
other material breach by the Company or Holdings of the Agreement,
which breach has not been remedied within 30 days of notice thereof
by Executive to Holdings.
1.28. “
Gross-Up Payment ” – see Exhibit A.
1.29. “
Holdings Board ” means the Board of Directors of
Holdings.
1.30. “
Inventions ” – see
Section 8.2(a).
1.31. “
Liquidity Event ” means a sale by Blackstone, in one
or a series of transactions, of its entire interest in Holdings and
the Company, regardless of whether such event constitutes a change
in effective control or ownership of Holdings and the Company
within the meaning of Section 409A of the Code. For avoidance of
doubt, no Liquidity Event shall be deemed to occur until and unless
Blackstone has sold its entire interest in Holdings and the
Company.
1.32. “
LP Agreement ” means the Amended and Restated
Agreement of Limited Partnership of Graham Packaging
Company.
1.33. “
MOIC ” - see Section 6.4(a).
1.34. “
Option ” means an option to purchase shares of Common
Stock.
1.35. “
Payment ” - see Exhibit A.
1.36. “
Permitted Transferee ” means the spouse of Executive,
a lineal descendant of Executive or a spouse of a lineal descendant
of Executive or a trust, limited partnership or other entity
principally benefiting all or a portion of such
individuals.
1.37. “
Person ” means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust,
unincorporated organization, association, corporation, institution,
public benefit corporation, entity or government instrumentality,
division, agency, body or department.
1.38. “
Prior Inventions ” - see
Section 8.2(a).
1.39. “
Restricted Period ” means the twenty-four month period
immediately following a Termination of Employment for any
reason.
1.40. “
Safe Harbor Amount ” - see Exhibit A.
1.41. “
Shareholder ” or “ Stockholder ”
means an owner of the Company’s equity securities.
1.42. “
Subsidiary ” means, with respect to any Person,
(a) any corporation of which more than 50% of the outstanding
capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of
whether, at the time, stock of any other class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or
indirectly, owned by such Person, and (b) any partnership,
limited liability company or other entity in which such Person has
a direct or indirect interest (whether in the form of voting or
participation in profits or capital contribution) of more than
50%.
Page 4 of 34
Exhibit 10.14
1.43. “
Target Annual Bonus ” means the product of Base Salary
(for any Year) multiplied by 180 percent, as such percentage may be
adjusted upwards from time to time by the Board.
1.44. “
Termination For Good Reason ” means a Termination of
Employment during the Employment Period by Executive for Good
Reason.
1.45. “
Termination of Employment ” means any termination by
the Company or by Executive (or due to Executive’s death) of
Executive’s employment with the Company or its
Affiliates.
1.46. “
Termination Without Cause ” means a Termination of
Employment during the Employment Period by the Company for any
reason other than Cause or Executive’s death or
Disability.
1.47. “
Underpayment ” - see Exhibit A.
1.48. “
Year ” means a calendar year period ending on
December 31.
ARTICLE 2
DUTIES
2.1
Duties . The Company shall employ Executive during the
Employment Period as its Chief Executive Officer. During the
Employment Period, Executive shall perform the duties assigned to
him hereunder by the Board and the Holdings Board from time to
time, and shall use his reasonable best efforts to promote the
interests of the Company. During the Employment Period, and
excluding any periods of disability, vacation, or sick leave to
which Executive is entitled, Executive agrees to devote his full
business time, attention and effort to the business and affairs of
the Company. If requested, Executive shall also serve as a member
of the Board without additional compensation.
2.2
Other Activities . Executive may (i) serve on those
corporate, civic or charitable boards or committees he presently
serves on, or a substitute for one or more such boards or
committees, during the Employment Period, (ii) deliver
lectures, fulfill speaking engagements, or teach at educational
institutions, subject to the consent of the Board and the Holdings
Board (which shall not be unreasonably withheld) and/or
(iii) manage personal investments, provided that all such
activities do not individually or in the aggregate significantly
interfere with the performance of his duties under this Agreement
or violate Section 8.1 of this Agreement.
ARTICLE 3
EMPLOYMENT PERIOD
3.1
Employment Period . Subject to Section 3.2 and the
termination provisions hereinafter provided, the term of
Executive’s employment under this Agreement (the
“Employment Period”) shall begin on the Agreement Date
and end on the fourth anniversary of the Agreement Date, or, if
applicable at the end of any extension pursuant to
Section 3.2. The employment of Executive by the Company shall
not be terminated other than in accordance with
Article 7.
3.2
Extensions of Employment Period . Commencing on the fourth
anniversary of the Agreement Date, and on each anniversary date
thereafter, (each an “Extension Date”) if at least 90
days before that date either Holdings or the Company has not
delivered to Executive, and Executive has not delivered to Company
and Holdings, a written notice that the Employment Period will not
be extended, the Employment Period will be automatically extended
for one year from its then scheduled expiration date (i.e., the
next occurring Extension Date).
ARTICLE 4
COMPENSATION
4.1
Salary . The Company shall pay Executive in accordance with
its normal payroll practices (but not less frequently than monthly)
an annual salary at a rate of $750,000 per year (“Base
Salary”). During the Employment Period, the Base Salary shall
be reviewed at least annually by the Committee after consultation
with Executive and may from time to time be increased as determined
by the Committee. Effective as of the date of any
Page 5 of 34
Exhibit 10.14
such increase, the Base Salary as so
increased shall be considered the new Base Salary for all purposes
of this Agreement. Any increase in Base Salary shall not limit or
reduce any other obligation of the Company to Executive under this
Agreement.
4.2 “
Annual Bonus.
(a) Subject
to Article 7, Executive shall be eligible to earn an annual
cash bonus (“Annual Bonus”) in accordance with the
terms hereof for the current Year and each subsequent Year that
begins during the Employment Period. Executive shall be eligible
for an Annual Bonus based upon the achievement of the financial
budget or other performance criteria established by the Board after
consultation with Executive and communicated to Executive prior to
the beginning of each Year. The Annual Bonus shall be equal to the
Target Annual Bonus upon full achievement of the performance
criteria, but may be less than the Target Annual Bonus upon lesser
levels of achievement.
(b) The
Company shall pay the entire Annual Bonus that is payable with
respect to a Year in a lump-sum cash payment within 2½
months following the close of such Year. Any such Annual Bonus
shall in any event be paid no later than the date annual bonuses
are paid to the other senior executives of the Company.
ARTICLE 5
OTHER BENEFITS
5.1
Incentive, Savings and Retirement Plans . In addition to
Base Salary and the Annual Bonus, Executive shall be entitled to
participate during the Employment Period in all incentive, savings
and retirement plans, practices, policies and programs that are
from time to time generally available to other senior executives of
the Company.
5.2
Welfare Benefits . During the Employment Period, Executive
and/or his eligible dependents, as the case may be, shall be
eligible for participation in all benefits under welfare benefit
plans, practices, policies and programs provided by the Company
(including any medical, prescription, dental disability, salary
continuance, employee life, group life, dependent life, accidental
death and travel accident insurance plans and programs) generally
available to other senior executives of the Company.
5.3
Fringe Benefits . During the Employment Period, Executive
shall be entitled to all fringe benefits that are from time to time
generally available to other senior executives of the
Company.
5.4
Vacation . During the Employment Period, Executive shall be
entitled to paid vacation time in accordance with the plans,
practices, policies, and programs generally available to other
senior executives of the Company, but in no event less than the
amount available to the current Chief Executive Officer of the
Company.
5.5
Expenses . During the Employment Period, Executive shall be
entitled to receive prompt reimbursement for all reasonable
employment related expenses incurred by Executive for the prior
month upon the receipt by the Company of accounting in accordance
with practices, policies and procedures generally available to
other senior executives of the Company; provided that all
reimbursements shall in any event be made within 2½ months
following the Year in which they were incurred.
5.6
Office; Support Staff . During the Employment Period,
Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and
other assistance, appropriate to his position and duties under this
Agreement, including a remote office in Maine with appropriate
furnishings as determined by the Board in its reasonable
discretion.
5.7
Transportation and Accommodation . During the Employment
Period, Executive shall be entitled to receive, on an after-tax
basis (i) round-trip plane transportation up to 50 times each year
from Maine to York, Pennsylvania, aboard a King Air 200 (or the
equivalent, in terms of cost to the Company, in other air
transportation to other destinations each year, provided that
either the beginning point or destination of such other air
transportation is York, Pennsylvania, with any unused trips being
carried forward to future years), and (ii) suitable accommodations
and use of an automobile in the York, Pennsylvania area, as
determined by the Board in its reasonable discretion.
Page 6 of 34
Exhibit 10.14
5.8
Tax Gross-Up Payment . If it shall be determined that any
payment to Executive pursuant to this Agreement or any other
payment or benefit from the Company would be subject to the excise
tax imposed by section 4999 of the Code, then Executive shall
receive a Gross-Up Payment pursuant to Exhibit A attached
hereto.
ARTICLE 6
OTHER EXECUTIVE BENEFITS
6.1
Deferred Signing Bonus . Executive shall be eligible to
receive a signing bonus, as incentive compensation, in the amount
of $3.0 million, payable in four equal quarterly installments of
$750,000 on each of the three, six, nine and twelve month
anniversaries of the date of this Agreement, contingent, with
respect to each such installment, upon Executive’s continued
employment (or deemed continued employment pursuant to Section 7.5)
with the Company as Chief Executive Officer on the earliest to
occur of (i) with respect to each such installment, the
anniversary date on which such installment is payable,
(ii) the date of Executive’s termination of employment
by the Company without Cause or by the Executive for Good Reason
during the Employment Period or (iii) a Change of Control. If
Executive’s employment as Chief Executive Officer with the
Company terminates prior to any such date (subject to Section 7.5),
other than a termination by the Company without Cause or by the
Executive for Good Reason, the signing bonus amount that then
remains unpaid shall be forfeited without further action required
by the Company or Holdings.
6.2
Pension Payment . Executive shall be entitled to receive a
pension payment of $640,000 for each of the 10 years following
Executive’s separation of employment with the Company,
contingent upon Executive’s continued employment (or deemed
continued employment pursuant to Section 7.5) with the Company as
Chief Executive Officer until the earliest to occur of:
(i) the fourth anniversary of the Agreement Date,
(ii) the date of the Executive’s termination of
employment by the Company without Cause or by the Executive for
Good Reason during the Employment Period, or (iii) a Change of
Control. If Executive’s employment as Chief Executive Officer
with the Company terminates prior to any such date (subject to
Section 7.5), other than a termination by the Company without Cause
or by the Executive for Good Reason, the pension payment amount
shall be forfeited without further action required by the Company
or Holdings. The pension payment will be paid on January 31 of
each of the 10 years following the Executive’s severance of
employment with the Company.
6.3
Equity Incentive Agreement . Executive shall be eligible to
participate in Holdings 2004 Management Option Plan pursuant to
those Option Agreements set forth as Exhibits B and C
hereto.
6.4 “
Transaction Bonus.
(a) Executive
shall be eligible to receive a bonus upon a Liquidity Event in the
amount set forth in Exhibit D, reduced by any amount paid
pursuant to Section 6.4(b), dependent upon the multiple of
invested capital (“MOIC”) received in such transaction,
and contingent upon Executive’s continued employment (or
deemed continued employment pursuant to Section 7.5) with the
Company as Chief Executive Officer on such date. If Executive
ceases to serve as Chief Executive Officer of the Company prior to
such date (subject to Section 7.5), he will forfeit 75% of such
bonus amount and if Executive ceases to be employed by the Company
prior to such date (subject to Section 7.5), he will forfeit 100%
of such bonus. In calculating MOIC for all purposes under the
Agreement, (i) any additional invested capital made during the
first and second quarter of 2007 shall be excluded, and (ii)
“invested capital” used in such calculation shall be
the Company’s average invested equity capital during the
latest four full fiscal quarters preceding the date of
determination it being understood that invested capital on the date
hereof equals $345,000,000. Notwithstanding the foregoing, if
Executive’s employment is terminated prior to the occurrence
of a Liquidity Event by the Company without Cause or by the
Executive for Good Reason, and a Liquidity Event occurs within one
year thereafter, then Executive shall be entitled to receive the
bonus set forth on Exhibit D dependent upon the MOIC received
in such transaction. Any transaction bonus earned shall be paid by
the Company upon the one year anniversary of the date of such
termination of employment.
(b) Notwithstanding
Section 6.4(a), in the event of an Initial Public Offering of
the Company or Holdings or a Change in Control, Executive shall
thereupon be paid by the Company a percentage of the Transaction
Bonus that would otherwise be paid under Section 6.4(a)
assuming that a Liquidity Event had occurred and in accordance with
the MOIC received, which percentage shall be equal to the
percentage reduction in Blackstone’s ownership in Holdings or
the Company, as applicable, contingent upon Executive’s
continued employment (or deemed continued employment pursuant to
Section 7.5) with the Company as Chief Executive Officer on such
date.
Page 7 of 34
Exhibit 10.14
Thereafter, with respect to each
successive reduction in Blackstone’s ownership that occurs,
Executive will thereupon be paid by the Company an additional such
percentage of the Transaction Bonus, in accordance with the MOIC
received, measuring the successive reduction against the amount of
Blackstone’s ownership in Holdings and the Company as of the
date hereof, such that, upon Blackstone’s ownership being
reduced to zero, Executive will have received all amounts due him
under Section 6.4(a), with such amounts (if any) payable to
Executive as of the last day of each Year during the Employment
Period.
6.5
Indemnification . The Company shall, to the maximum extent
permitted by law, and in addition to any such right granted to or
available to the Executive under the Company’s Charter,
By-laws or standing or other resolutions, defend, indemnify and
hold harmless the Executive from and against any and all claims
made against the Executive concerning or relative to his service,
actions or omissions on behalf of the Company as an officer,
employee, director or agent thereof; provided, however, that the
obligation to indemnify the Executive shall not apply to any claim
made against the Executive that arises out of the act, omission or
failure to act that would constitute Cause for the
Executive’s termination of employment. The Company shall,
upon the Executive’s request, promptly advance or pay any
amounts for reasonable costs, charges, or expenses (including any
legal fees and expenses incurred by counsel retained by the
Executive) in respect of his right to indemnification hereunder or
in furtherance of such right, subject to a later determination as
to the Executive’s ultimate right to receive indemnification.
The Executive’s right to indemnification shall survive until
the expiration of all applicable statutes of limitations, without
regard to the earlier termination of the Executive’s
employment.
ARTICLE 7
TERMINATION BENEFITS
7.1
Termination of Employment . The Employment Period and
Executive’s employment hereunder may be terminated by either
party at any time and for any reason; provided that Executive will
be required to give the Company at least 30 days’ advance
written notice of any resignation of Executive’s employment.
Notwithstanding any other provision of this Agreement, the
provisions of this Article 7 shall exclusively govern
Executive’s rights under this Agreement following the
expiration of the Employment Period or if Executive’s
employment with the Company or its Affiliates is terminated during
the Employment Period for any reason.
7.2 “
Termination for Cause or Other Than for Good Reason,
etc.
(a) If
the Company terminates Executive’s employment during the
Employment Period for Cause or Executive terminates his employment
during the Employment Period other than for Good Reason, death or
Disability, the Company shall pay to Executive immediately after
the Date of Termination a lump-sum amount equal to
Executive’s Accrued Base Salary, accrued but unpaid vacation
and unpaid business expenses properly incurred by Executive in
accordance with Company policy prior to the date of
Executive’s termination.
(b) Before
terminating Executive’s employment for Cause, the Board will
specify in writing to Executive in detail the nature of the act,
omission, refusal, or failure that it deems to constitute
Cause.
7.3
Termination for Death or Disability . If Executive’s
employment terminates during the Employment Period due to his death
or Disability, the Company shall pay to Executive or his
Beneficiaries, as the case may be, immediately after the Date of
Termination a lump-sum amount that is equal to the
Executive’s Accrued Base Salary, accrued but unpaid vacation
and unpaid business expenses properly incurred by Executive in
accordance with Company policy prior to the date of
Executive’s termination.
7.4
Termination Without Cause and Termination for Good Reason .
In the event of a Termination Without Cause or a Termination for
Good Reason during the Employment Period, the Executive shall
receive the following:
(a) Immediately
after the Date of Termination, a lump-sum amount equal to the sum
of Executive’s Accrued Base Salary, accrued but unpaid
vacation and unpaid business expenses properly incurred by
Executive in accordance with Company policy prior to the date of
Executive’s termination;
(b) The
amount of the Transaction Bonus, if and to the extent earned
pursuant to Section 6.4;
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Exhibit 10.14
(c) An
Annual Bonus, determined pursuant to Section 4.2, for the Year of
such Termination of Employment, multiplied by a fraction, the
numerator of which is the number of days that the Executive is
employed by the Company during such Year and the denominator of
which is 365, contingent upon achievement by the Company of the
performance targets relative to such Annual Bonus;
(d) An
Annual Bonus, determined pursuant to Section 4.2, for the Year
preceding the Year of such Termination of Employment, if and to the
extent the Annual Bonus for such preceding Year has been earned and
has not yet been paid to Executive;
(e) The
amount of the Deferred Signing Bonus, pursuant to Section 6.1;
and
(f) The
amount of the Pension Payments, pursuant to
Section 6.2.
7.5
Deemed Continuation of Employment . Notwithstanding anything
to the contrary in this Agreement, in the event that the
Executive’s employment is terminated by the Company without
Cause or by Executive for Good Reason, in either case in
contemplation of a pending Change of Control, Executive shall be
deemed to continue his employment as Chief Executive Officer of the
Company pursuant to the Agreement until the effective date of such
Change of Control provided that the Change of Control occurs within
one year after Executive’s termination of
employment.
7.6
Other Termination Benefits . In addition to any amounts or
benefits payable upon a Termination of Employment hereunder,
Executive shall, except as otherwise specifically provided herein,
be entitled to any payments or benefits provided under the terms of
any plan, policy or program of the Company in which Executive
participates or as otherwise required by applicable law.
7.7
Election Not to Extend the Employment Period . If the
Company elects not to extend the Employment Period pursuant to
Section 3.2 such that the Employment Period terminates, the
nonextension shall not be treated, for purposes of
Section 7.4, as a Termination without Cause or constitute Good
Reason for Executive to terminate employment.
7.8
Continued Employment Beyond the Expiration of the Employment
Period . Unless the parties otherwise agree in writing,
continuation of Executive’s employment with the Company
beyond the expiration of the Employment Period shall be deemed an
employment at-will and shall not be deemed to extend any of the
provisions of this Agreement and Executive’s employment may
thereafter be terminated at will by either Executive or the
Company; provided that the provisions of Article 7 of this
Agreement shall survive any termination of this Agreement or
Executive’s termination of employment hereunder.
7.9
Board/Committee Resignation . Upon Executive’s
Termination of Employment for any reason, Executive agrees to
resign, as of the date of such termination and to the extent
applicable, from the Board (and any committees thereof) and the
Board of Directors (and any committees thereof) of any of the
Company’s affiliates.
7.10
Property . Upon Executive’s termination of Employment
with the Company for any reason, Executive shall return all
property of the Company and Holdings to the Company.
ARTICLE 8
RESTRICTIVE COVENANTS
8.1 “
Non-Solicitation of Employees; Confidentiality;
Non-Competition.
(a) Executive
covenants and agrees that, at no time during the Employment Period
nor during the Restricted Period, will Executive:
(i) Directly
or indirectly employ or seek to employ any person (other than his
personal assistant) employed as of the date of Executive’s
Termination of Employment or who left the employment of the Company
or its Affiliates coincident with, or within six months prior to or
after, the Executive’s Termination of Employment with the
Company or otherwise encourage or entice any such person to leave
such employment (provided that this
Section 8.1(a)(i) shall not apply either to persons who
had not become employed by the Company before the Date of
Termination or to persons whose
Page 9 of 34
Exhibit 10.14
employment ended at any time as a
result of the Company’s termination of those individuals and
shall not apply to general solicitations);
(ii) Become
employed by, enter into a consulting arrangement with or otherwise
agree to perform personal services for a Competitor (as defined in
section 8.1(b)).
(iii) Acquire
an ownership interest, or an option to purchase an ownership
interest in a Competitor, other than a publicly traded Competitor
provided that ownership or option position in such publicly traded
Competitor does not exceed 5 percent;
(iv) Solicit
any business of the Company on behalf of or for the benefit of a
Competitor; or
(v) Interfere
with, or attempt to interfere with, business relationships (whether
formed before, on or after the date of this Agreement) between the
Company or any of its affiliates and customers, clients, suppliers
of the Company or its Affiliates.
(b) For
purposes of this Section, “Competitor” means (i) any
Person that produces blowmolded plastic containers or produces or
provides any other product or service of the Company that
represents, as of the Date of Termination, at least 25% of the
consolidated revenues of the Company (including, without
limitation, products or services that Executive is aware, as of the
Date of Termination, that the Company had specific plans (as
evidenced through the most recent annual corporate business plan or
by resolutions of the Board) to produce or provide during the
twelve month period following the Date of Termination and such
products or services are reasonably anticipated to represent at
least 25% of the consolidated revenues of the Company within the
two years following the Date of Termination) and (ii) any Person
listed on Exhibit F. Notwithstanding anything to the contrary in
subsection (i) of the foregoing sentence, a Competitor shall not
include any Person of which a unit produces blowmolded plastic
containers or products or such other products or services (a
“Competitive Unit”) but as to which unit Executive does
not have direct or indirect responsibilities for the products or
services involved; provided, that such Competitive Unit contributes
less than 25% of the consolidated revenues for the most recently
completed fiscal year of such Person but shall include any Person
listed on Exhibit F.
(c) Subject
to applicable law and legal process, Executive covenants and agrees
that at no time during the Employment Period nor at any time
following any Termination of Employment will Executive communicate,
furnish, divulge or disclose in any manner to any Person any
Confidential Information (as defined in Section 8.1(d) without
the prior express written consent of the Company, other than in the
course of Executive’s employment. After a Termination of
Employment, Executive shall not, without the prior written consent
of the Company, or as may otherwise be required by applicable law
or legal process, communicate or divulge such Confidential
Information to anyone other than the Company and its
designees.
(d) For
purposes of this Section, “Confidential Information”
shall mean financial information about the Company, the
Company’s contract terms with vendors and suppliers, customer
and supplier lists and data, know-how, software developments,
inventions, formulae, technology, designs and drawings, or any
Company property or confidential information relating to research,
operations, finances, current and proposed products and services,
vendors, customers, advertising, costs, marketing, trading,
investment, sales activities, promotion, manufacturing processes,
or the business and affairs of the Company generally, or of any
subsidiary or affiliate of the Company, trade secrets and such
other competitively-sensitive information, except that Confidential
Information shall not include any information that was or becomes
generally available to the public (i) other than as a result
of a wrongful disclosure by Executive, (ii) as a result of
disclosure by Executive during the Employment Period that he
reasonably and in good faith believes is required by the
performance of his duties under this Agreement, or (iii) any
information compelled to be disclosed by applicable law or legal
process; provided that Executive, to the extent not prohibited from
doing so by applicable law or legal process, shall give the Company
written notice of the information to be so disclosed pursuant to
clause (iii) of this sentence as far in advance of its
disclosure as is practicable.
(e) Executive
agrees that upon Executive’s Termination of Employment with
the Company for any reason, he will promptly return to the Company
or certify to the Company the destruction of all memoranda, books,
papers, plans, information, letters and other data, and all copies
thereof or therefrom, in any way relating to the business of the
Company, its affiliates and subsidiaries, except that he may retain
personal notes, notebooks and
Page 10 of 34
Exhibit 10.14
diaries, subject to his continuing
obligation under Section 8.1(c). Executive further agrees that he
will not retain or use for Executive’s own benefit, purposes
or account or the benefit, purposes or account of any other person,
firm, partnership, joint venture, association, corporation or other
business designation, entity or enterprise, other than the Company
and any of its Subsidiaries or Affiliates, at any time any trade
names, trademark, service mark, other proprietary business
designation, patent, or other intellectual property of the Company
or its Affiliates.
8.2 “
Inventions.
(a)
Prior Inventions . Executive has attached hereto, as Exhibit
E, a list describing all inventions, works of authorship (including
software, related items, databases, documentation, site content,
text or graphics), developments, and improvements that relate to
the Company’s proposed or current business, services,
products or research and development (“Inventions”)
that were created or contributed to by Executive either solely or
jointly with others prior to Executive’s employment with the
Company and that relate to the Company’s proposed or current
business, services, products or research and development
(collectively referred to as “Prior Inventions”); or,
if no such list is attached, Executive represents that there are no
such Prior Inventions. If in the course of Executive’s
employment with the Company, Executive uses or relies upon a Prior
Invention in Executive’s creation or contribution to any work
of authorship, invention, product, service, process, machine or
other property of the Company, Executive will inform the Company
promptly and, upon request, use Executive’s best efforts to
procure any consents of third parties necessary for the
Company’s use of such Prior Invention. To the fullest extent
permissible by law, Executive hereby grants the Company a
non-exclusive royalty-free, irrevocable, perpetual, worldwide
license under all of Executive’s Prior Inventions to make,
have made, copy, modify, distribute, use and sell works of
authorship, products, services, processes and machines and to
otherwise operate the Company’s current and future
business.
(b)
Ownership of Inventions . Executive agrees that Executive
will promptly make full written disclosure to the Company, and
hereby assign to the Company, or its designee, all of
Executive’s right, title, and interest in and to any and all
Inventions, whether or not patentable, that Executive may solely or
jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of
time Executive is in the employ of the Company (collectively
referred to as “Company Inventions”). Executive further
acknowledges that all original works of authorship that are created
or contributed to by Executive (solely or jointly with others)
within the scope of and during the period of Executive’s
employment with the Company are to be deemed “works made for
hire,” as that term is defined in the United States Copyright
Act (17 U.S.C. Section 101), and the Company will own all
right, title and interest in such works, including all copyright
and all intellectual property therein shall be the sole property of
the Company or its designee for all territories of the world in
perpetuity, including any and all copyright registrations,
copyright applications and all other copyrightable materials,
including any renewals and extensions thereof, and in and to all
works based upon, derived from, or incorporating the works covered
by such copyrights and in and to all income, royalties, damages,
claims, and payments now or hereinafter due or payable with respect
thereto, and in all causes of action, either in law or in equity
for past, present or future infringement based on said copyrights,
and in and to all rights corresponding to the foregoing throughout
the world. To the extent any of such works are deemed not to be
“works made for hire,” Executive hereby assigns the
copyright and all other intellectual property rights in such works
to the Company.
(c)
Contracts with the United States . Executive agrees to use
all reasonable efforts to execute any licenses
