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THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employment Agreement

THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: Jarden Corporation | Ian G.H. Ashken You are currently viewing:
This Employment Agreement involves

Jarden Corporation | Ian G.H. Ashken

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Title: THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 5/25/2007
Law Firm: Kane Kessler, P.C.    

THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: jarden corporation , ian g.h. ashken
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Exhibit 10.2

THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), dated as of May 24, 2007, by and between Jarden Corporation, a Delaware corporation (the “Company”), and Ian G.H. Ashken (“Executive”).

WITNESSETH:

WHEREAS, the Company and the Executive are parties to a Second Amended and Restated Employment Agreement entered into as of January 24, 2005 (the “Employment Agreement”); and

WHEREAS, the Company desires to continue to employ Executive as Vice Chairman and Chief Financial Officer of the Company on the terms and conditions hereinafter set forth; and

WHEREAS, Executive is willing to continue to be employed as Vice Chairman and Chief Financial 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 Third 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 Executive desire to enter into this Agreement which shall be deemed to amend, restate and replace the Second Amended and Restated Employment Agreement between the Company and Executive dated as of January 24, 2005.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Company and Executive hereby agree as follows:

1. Employment . Upon the terms and subject to the conditions of this Agreement, the Company hereby continues to employ Executive as Vice Chairman and Chief Financial Officer of the Company through December 31, 2009, and Executive hereby agrees to 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 Executive from time to time may (a) be appointed to additional offices or to different offices than those set forth above, (b) perform such duties other than those set forth above, and/or (c)

 


relinquish one or more of such offices or other duties, in each instance as may be mutually agreed to by and between the Company and the Executive 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. The period during which Executive is employed pursuant to this Agreement shall be referred to as the “Employment Period.”

2. Position, Duties and Location . During the Employment Period, Executive shall, subject to the provisions of Section 1 above, serve as Vice Chairman and Chief Financial Officer of the Company and shall be nominated for election, and if so elected shall continue to serve, as a member of the Board of Directors of the Company and, unless the Company and Executive shall jointly determine otherwise, Vice Chairman of the Board of Directors of the Company (the “Board”). During the Employment Period, Executive shall have the duties, responsibilities and obligations (a) as are customarily assigned to individuals serving as the Vice Chairman and Chief Financial Officer of comparable companies and (b) as have been assigned, exercised or assumed in accordance with past practice, together with such other duties, responsibilities and obligations consistent with such positions as the Board shall from time to time specify, provided that such additional duties, responsibilities and obligations are fair and reasonable under the circumstances, do not unreasonably increase the demands upon the Executive’s time or energies, and are not inconsistent with the Executive’s position as Vice Chairman and Chief Financial Officer. The Executive shall devote such time and energy to the business and affairs of the Company as he deems reasonably necessary to perform the duties of these positions and shall use his best efforts, skills and abilities to improve and advance the business and interests of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Company hereby acknowledges that the Executive has certain responsibilities to the Marlin group of companies, and has a direct or indirect ownership interest in Freedom Acquisition Holdings, Inc., and provided that the Executive otherwise has performed his duties on behalf of the Company hereunder, the Company agrees that nothing contained in this Agreement shall prohibit or interfere with such ownership or responsibilities. Nothing contained in this Section 2 shall preclude Executive from (i) serving on the board of directors of any business corporation, unless such service would be contrary to applicable law, (ii) serving on the board of directors of, or working for, any charitable or community organization or (iii) pursuing his personal financial and legal affairs, so long as such activities, individually or collectively, do not interfere with the performance of Executive’s duties hereunder or violate any of the provisions of Section 6 hereof. Executive’s place of employment shall be at the Company’s principal executive office in Rye, New York throughout the term of this Agreement.

3. Compensation .

(a) Base Salary . Effective as of January 1, 2007 and continuing through the Employment Period, the Company shall pay to the Executive and the Executive shall accept from the Company, as compensation for the performance of services under this Agreement and the Executive’s observance and performance of all of the provisions hereof, a salary of $900,000. The Board (or the appropriate committee of the Board) shall

 

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annually review Executive’s base salary and shall be increased by a minimum of the Consumer Price Index. In addition, the Board (or the appropriate committee of the Board) shall annually review Executive’s base salary in light of competitive practices, the base salaries paid to other executive officers of the Company and the performance of Executive and the Company, and may, in its discretion, increase such base salary by any additional amount it determines to be appropriate; provided, however, that any such increase shall not reduce or limit any other obligation of the Company hereunder. Executive’s base salary (as set forth herein or as may be increased from time to time) shall not be reduced. Executive’s base salary payable hereunder, as it may be increased from time to time is referred to herein as “Base Salary.” The Company shall pay Executive his Base Salary in accordance with the normal payroll practices of the Company for its executive officers, but in no event less frequently than once per month.

(b) Annual Bonus . The Executive shall be eligible for a bonus package based on performance. The decision as to whether to pay the Executive an additional bonus based on operations, 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 Executive 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 Company’s bonus program shall (i) provide that Executive shall have the opportunity to earn 50% of Base Compensation in each year of the Employment Period if the Company achieves the Company’s budgeted earnings per share target as approved by the Board of Directors or, for each year of the Employment Period for which the Company achieves 110% of the Company’s earnings per share target, 100% of Base Compensation, and (ii) provide for the Executive to receive a discretionary bonus of up to 100% of Base Compensation (the “Discretionary Bonus”) for services specifically performed relating to exceptional performance related to other corporate activity undertaken by the Company in any year. Any Discretionary Bonus shall be determined in the sole discretion of either the Board of Directors or its Compensation Committee.

(c) Performance Restricted Stock Grants . 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 Executive is employed on such date, Executive shall be entitled to receive an annual grant of 95,000 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:

 

Grant   

Date

   Maximum Target Stock Price
Appreciation (%) over Closing Price on
Last Trading Day of Prior Year
95,000    May 24, 2007    40%
95,000    May 1, 2008    12%
95,000    May 1, 2009    12%
95,000    May 1, 2010    12%
95,000    May 1, 2011    12%

 

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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 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 in Section 5(d) hereof) occurs prior to achievement of the vesting targets for each annual grant of Restricted Stock pursuant to this Section 3(c), each of the annual restricted stock awards set forth in this Section 3(c) 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 Executive pursuant to this Section 3(c), the Company shall grant to the Executive 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”), Executive 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 Executive 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 3(c), Executive 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

 

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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 Executive 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 Executive, which will reflect the terms of this Section 3(c).

4. Benefits, Perquisites and Expenses .

(a) Benefits . During the Employment Period, Executive shall be eligible to participate in (i) each welfare benefit plan sponsored or maintained by the Company or currently made available to the Executive, including, without limitation, each group life, hospitalization, medical, dental, health, accident or disability insurance, cafeteria or similar plan or program of the Company, (ii) each pension, retirement, deferred compensation or savings plan sponsored or maintained by the Company, and (iii) to the extent of any awards made from time to time by the Board committee administering the plan, each stock option, restricted stock, stock bonus or similar equity-based compensation plan sponsored or maintained by the Company, in each case, whether now existing or established hereafter, to the extent that Executive is eligible to participate in any such plan under the generally applicable provisions thereof. Nothing in this Section 4(a) shall limit the Company’s right to amend or terminate any such plan in accordance with the procedures set forth therein.

(b) Perquisites . During the Employment Period, Executive shall be entitled to four weeks of paid vacation annually, shall be entitled to observe, with pay, all religious holidays historically observed by Executive and shall also be entitled to receive such perquisites as are generally provided to other senior executive officers of the Company in accordance with the then current policies and practices of the Company. Executive shall be entitled to use for his personal use any airplanes that the Company owns or is entitled to use as a result of lease, pooling, sharing or other agreements, provided that Executive shall either prepay or pay directly, on or prior to such use, the actual (if determinable) or estimated direct cost of such use. In addition, during the Employment Period, Executive shall receive, at the Company’s expense:

(i) the assistance of the Company’s tax advisors in regard to personal tax planning and preparing personal income tax returns; and

 

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(ii) a split-dollar life insurance policy, or equivalent, on the Executive in the amount of $6 million payable to such beneficiaries as Executive shall select.

(c) Business Expenses . During the Employment Period, the Company shall pay or reimburse Executive for all reasonable expenses incurred or paid by Executive in the performance of Executive’s duties hereunder upon presentation of expense statements or vouchers and such other information as the Company may require and in accordance with the generally applicable policies and procedures of the Company. In addition, the Company shall provide the Executive with a non-accountable supplemental benefit expense up to 5% of Executive’s Base Salary per year, to be used against any expenses incurred by Executive that may be un-reimbursed pursuant to the sentence above or otherwise.

(d) Indemnification . The Company shall indemnify Executive and hold Executive harmless from and against any claim, loss or cause of action arising from or out of Executive’s performance as an officer, director or employee of the Company or any of its subsidiaries or in any other capacity during the Employment Period including, but not limited to, any fiduciary capacity in which Executive serves at the request of the Company, in each instance to the maximum extent permitted by applicable law and the Company’s Amended and Restated Certificate of Incorporation and By-Laws, each as existing on the date hereof and as amended by amendments favorable to Executive.

(e) D & O Insurance . The Company agrees that for six (6) years and one (1) business day after the expiration or earlier termination of the Employment Period the Company shall obtain and provide at its expense directors’ and officers’ liability insurance or directors’ and officers’ liability tail insurance policies covering the Executive with respect to acts or omissions occurring during Executive’s employment with the Company with coverage and amounts (including with respect to the payment of attorney’s fees) equal to or greater than those of the Company’s policy in effect on the date hereof.

(f) Non-exclusivity of Right s. The rights of the Executive under Sections 4(d) and 4(e) shall be in addition to any rights he may have under the articles of incorporation or bylaws of the Company, any agreement providing for indemnification, or under the laws of the State of Delaware or any other applicable laws.

5. Termination of Employment .

For purposes of Sections 5 and 6, the terms “Additional Termination Benefits”, “Change of Control”, “Disability”, “Earned Salary”, “Severance Benefits”, “Termination for Cause”, “Termination for Good Reason”, “Termination Not for Good Reason”, “Termination Without Cause” and “Vested Benefits” shall have the meanings ascribed to such terms in Section 5(d) hereof.

(a) Early Termination of the Employment Period . Notwithstanding any provision of Section 1, the Employment Period shall end upon the earliest to occur of (1) a termination of Executive’s employment on account of Executive’s death, (2) a

 

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termination due to Executive’s Disability, (3) a Termination for Cause, (4) a Termination Without Cause, (5) a Termination for Good Reason or (6)a Termination Not for Good Reason.

(b) B enefits Payable Upon Early Termination; Change of Control; Non-Renewal . If (1) an early termination of the Employment Period occurs pursuant to Section 5(a) hereof, (2) following a Change of Control of the Company after which the Executive remains employed by the Company or its successor under the terms of this Agreement, or (3) in the event this Agreement is not renewed upon or prior to its expiration on equal or more favorable terms and the Executive, at the time of such expiration, is willing and able to renew the Agreement on terms and conditions substantially similar to those in this Agreement and to continue to provide services to the Company (a “Non-Renewal”), Executive (or, in the event of his death, his surviving spouse, if any, or his estate) shall be paid the type or types of compensation, without duplication, determined to be payable in accordance with the following table at the times established pursuant to Section 5(c):

 

     Earned Salary    Vested Benefits    Additional
Termination
Benefits
  

Severance

Benefits

Termination due to death    Payable    Payable    Payable/ to
be provided
   Payable
Termination due to Disability    Payable    Payable    Payable/ to
be provided
   Not payable
Termination for Cause    Payable    Payable    Not available    Not payable
Termination for Good Reason    Payable    Payable    Payable/ to
be provided
   Payable
Termination Without Cause    Payable    Payable    Payable/ to
be provided
   Payable

Termination Not for Good

Reason

   Payable    Payable    Not available    Not payable
Change of Control of the Company (without Termination)    Not payable    Not payable    Not available    Not Payable
Non-Renewal (as defined above)    Payable    Payable    Payable/ to
be provided
   Not Payable

(c) Timing of Payments . Earned Salary shall be paid in cash in a single lump sum as soon as practicable following the end of the Employment Period, but in no event more than 10 days thereafter; provided, that if Executive’s termination is in conjunction

 

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with a Change of Control, Executive shall be paid his Earned Salary on the earlier to occur of (a)&nb


 
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