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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:
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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 |
| 95,000 |
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May 24, 2007 |
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40% |
| 95,000 |
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May 1, 2008 |
|
12% |
| 95,000 |
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May 1, 2009 |
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12% |
| 95,000 |
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May 1, 2010 |
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12% |
| 95,000 |
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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):
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Earned Salary |
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Vested Benefits |
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Additional
Termination
Benefits |
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Severance
Benefits
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| Termination due to death |
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Payable |
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Payable |
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Payable/ to
be provided |
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Payable |
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| Termination
due to Disability |
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Payable |
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Payable |
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Payable/ to
be provided |
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Not
payable |
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| Termination
for Cause |
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Payable |
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Payable |
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Not
available |
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Not
payable |
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| Termination
for Good Reason |
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Payable |
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Payable |
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Payable/
to
be provided |
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Payable |
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| Termination
Without Cause |
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Payable |
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Payable |
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Payable/ to
be provided |
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Payable |
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Termination Not for Good
Reason
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Payable |
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Payable |
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Not available |
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Not
payable |
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| Change of
Control of the Company (without Termination) |
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Not payable |
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Not payable |
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Not
available |
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Not
Payable |
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| Non-Renewal
(as defined above) |
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Payable |
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Payable |
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Payable/ to
be provided |
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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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