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Exhibit
10.3
SECOND AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), dated
as of May 24, 2007, is entered into between Jarden
Corporation, a Delaware corporation (the “Company”) and
James E. Lillie, (the “Employee”).
WITNESSETH
:
WHEREAS, the Company and the
Employee are parties to an Amended and Restated Employment
Agreement entered into as of January 24, 2005 (the
“Employment Agreement”); and
WHEREAS, the Company desires
to continue to employ Employee as President and Chief Operating
Officer of the Company on the terms and conditions hereinafter set
forth; and
WHEREAS, Employee is willing
to continue to be employed as President and Chief Operating Officer
of the Company on such terms and conditions; and
WHEREAS, the members of the
Compensation Committee have considered potential future
compensation for senior executives and retained independent
consultants to assist with this review; whereupon, based on the
results of its review, the Compensation Committee thereafter
concluded that it would recommend that the Board adopt the
employment and compensation arrangements in this Second Amended and
Restated Agreement; and
WHEREAS, the Compensation
Committee of the Company’s Board of Directors and the
Company’s Board of Directors, at meetings duly called and
held, have each authorized and approved the execution and delivery
of this Agreement by the Company; and
WHEREAS, the Company and
Employee desire to enter into this Agreement which shall be deemed
to amend, restate and replace the Amended and Restated Employment
Agreement between the Company and Employee dated as of
January 24, 2005.
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 Chief Operating
Officer 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 Rye, New York, 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 commence on the date hereof and shall end on
December 31, 2009 (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 President and/or Chief
Operating Officer 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; provided
that the Chief Executive Officer may change Employee’s title
and/or duties in connection with a restructuring pursuant to which
the roles of President and Chief Operating Officer are divided into
two separate functions, and such change in title and/or function
shall not be deemed a termination or constructive termination of
Employee’s employment hereunder. 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 . Effective as of January 1, 2007 and 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 $635,000 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 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.
In addition to any other bonus(es), whether based on performance,
operations or otherwise, that the Compensation Committee may award
to Employee pursuant to the Company’s Short-Term Cash
Incentive Awards under the Plan (as defined below) or such other
similar plan that the Company may have in place, the bonus program
shall give the Employee the opportunity to earn up to 50% of Base
Compensation each year for achieving the Company’s EBITDA and
earnings per share budget and up to 100% of Base Compensation for
achieving EBITDA 10% higher than budget and EPS 10% higher than
budget. Each will be given a 50% percent weight in the bonus
calculation. In addition, the Employee will be eligible to be
awarded a discretionary bonus of up to 50%
2
of Base Compensation for services
specifically performed relating to exceptional performance related
to other corporate activity undertaken by the Company in any year
(the “Discretionary Bonus”). Any Discretionary Bonus
shall be determined in the sole discretion of either the Board of
Directors or its Compensation Committee.
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 immediately entitled
to four weeks of vacations as well as sick leave and other similar
benefits in accordance with policies of the Company from time to
time in effect for personnel with commensurate duties. The company
will purchase a term life insurance policy, or other similar
insurance vehicle, for the benefit of the employee in the amount of
one million dollars.
On the date hereof and on
May 1 of each year after the date hereof ending on, but
including, May 1, 2011 (or, if any such date is not a business
day, on the next succeeding business day), provided Employee is
employed on such date, Employee shall be entitled to receive an
annual grant of 40,000 shares of restricted stock (the
“Restricted Stock”) under the Company’s Amended
and Restated 2003 Stock Incentive Plan, as amended (the
“Plan”) or such other similar stock plan that the
Company may have in place, based on the long-term incentive
framework for the Company adopted by the Compensation Committee.
The restrictions on the awards shall lapse based on achievement of
a target appreciation in the stock price of the common stock of the
Company set by the Compensation Committee at the time of grant, but
not to exceed a maximum target appreciation percentage according to
the following schedule:
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Grant |
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Date |
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Maximum Target Stock Price
Appreciation (%) over Closing Price on
Last Trading Day of Prior Year |
| 40,000 |
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May 24, 2007 |
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40% |
| 40,000 |
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May 1, 2008 |
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12% |
| 40,000 |
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May 1, 2009 |
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12% |
| 40,000 |
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May 1, 2010 |
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12% |
| 40,000 |
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May 1, 2011 |
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12% |
The vesting target shall be
achieved on the date that the average closing price of the
Company’s common stock on the New York Stock Exchange (or
such other securities exchange on which the Company’s common
stock may then be traded) for any period of five consecutive
trading days equals or exceeds a price representing an increase
over the closing price on the last trading day of the prior
calendar year at least equal to the target stock price appreciation
percentage set by the Compensation Committee (up to the
3
maximum set forth above). By way of
example, based on a closing price of $34.79 per share for the
Company’s common stock on December 29, 2006 (the last
trading day of the year prior to the May 2007 grant), the
restrictions on the Restricted Stock granted in May 2007 would
lapse and the shares become fully vested on the date that the
average closing price of the Company’s common stock on the
New York Stock Exchange for any period of five consecutive trading
days has equaled or exceeded $48.70 per share. In the event that a
Change of Control of the Company (as defined herein) occurs prior
to achievement of the vesting targets for each annual grant of
Restricted Stock pursuant to this Section 4, each of the
annual restricted stock awards set forth in this Section 4
shall be immediately granted, notwithstanding whether the scheduled
grant date has been achieved, and the restrictions on all such
shares of Restricted Stock shall immediately lapse and such shares
shall become fully vested.
The Company shall use its
commercially reasonable efforts to obtain stockholder approval for
an equity compensation plan or an amendment to the Plan that
provides the Company with sufficient availability to grant such
Restricted Stock. In the event that the Company does not have a
stock incentive plan in place on or prior to May 1 of each
year with enough shares to be granted to the Employee pursuant to
this Section 4, the Company shall grant to the Employee such
number of shares of Restricted Stock that are available under the
Company’s stock incentive plans, and in lieu of any shares of
Restricted Stock not granted (the “Remaining Stock”),
Employee shall receive a mutually acceptable compensation package
having performance targets and a value equivalent to the value of
the shares of Remaining Stock not issued to the Employee as
determined in good faith by the Compensation Committee or Board of
Directors, as the case may be.
Upon satisfaction of the
conditions and the lapsing of the restrictions on each grant of
Restricted Stock as set forth in this Section 4, Employee
shall be entitled to (i) satisfy the minimum withholding tax
obligation (or such greater withholding amount as the Compensation
Committee may approve) by electing to have the Company withhold
from the Restricted Stock that number of shares having a Fair
Market Value (as defined in the Plan) equal to the minimum amount
required to be withheld (or such greater withholding amount as the
Compensation Committee may approve), determined on the date that
the amount of tax to be withheld is to be determined, and
(ii) thereafter sell only 20% (but not more than 20%) of such
remaining vested shares in any calendar year ending prior to
January 1, 2012, provided that Employee shall be entitled to
sell all such vested shares at any time on or after January 2012,
subject to applicable law, regulation or stock exchange rule. The
foregoing 20% limitation shall lapse upon a Change of Control of
the Company.
The number of shares granted
and the target share price shall be adjusted for changes in the
common stock as outlined in Section 18.4 of the Plan or as
otherwise mutually agreed in writing between the parties. The terms
of each grant of Restricted Stock hereunder shall be set forth in a
Restricted Stock Award Agreement, substantially similar to the form
used for the 2005 restricted share grant to Employee, which will
reflect the terms of this Section 4.
4
As used herein, “Change
of Control of the Company” means and shall be deemed to have
occurred if:
(i) any person (within the
meaning of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), other than the Company, is or becomes
the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of Voting Securities
representing 50 percent or more of the total voting power of all
the then-outstanding Voting Securities; or
(ii) the individuals who, as
of the date hereof, constitute the Board, together with those who
first become directors subsequent to such date and whose
recommendation, election or nomination for election to the Board
was approved by a vote of at least a majority of the directors then
still in office who either were directors as of the date hereof or
whose recommendation, election or nomination for election was
previously so approved (the “Continuing Directors”),
cease for any reason to constitute a majority of the members of the
Board; or
(iii) the stockholders of the
Company approve a merger, consolidation, recapitalization or
reorganization of the Company or a subsidiary, reverse split of any
class of Voting Securities, or an acquisition of securities or
assets by the Company or a subsidiary, or consummation of any such
transaction if stockholder approval is not obtained, provided, that
any such transaction in which the holders of outstanding Voting
Securities immediately prior to the transaction receive (or, in the
case of a transaction involving a subsidiary and not the Company,
retain), with respect to such Voting Securities, voting securities
of the surviving or transferee entity representing more than 60
percent of the total voting power outstanding immediately after
such transaction shall not be deemed a Change of Control if the
voting power of each such continuing holder relative to other such
continuing holders not substantially altered in such transaction;
or
(iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets.
“Voting Securities or
Security” means any securities of the Company which carry the
right to vote in the election of, or participate in the appointment
of, the Company’s directors.
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 pos
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