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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 Confidential
Information . Upon the termination of Employee’s
employment with the Company, the Employee shall promptly deliver to
the Company all dr
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