EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the 1st
day of December, 1992, between Heekin Can, Inc., a Delaware corporation (the
"Company"), and John A. Haas (the "Executive").
WHEREAS, the Company desires to employ Executive, and Executive desires to
serve the Company, under the terms and conditions set forth in this Agreement;
WHEREAS, the Company entered into a deferred compensation arrangement with
Executive as of April 28, 1987 (the "Former Arrangement") and an employment
agreement dated December 6, 1982 (the "Former Employment Agreement);
WHEREAS, subject to the occurrence of the Effective Time (as hereinafter
defined), the parties desire to enter into this Agreement in lieu of the Former
Arrangement and the Former Employment Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements herein contained, and, subject to the occurrence of the
Effective Time (as hereinafter defined), intending to be legally bound hereby,
the Company and Executive hereby agree as follows:
1. Employment. Executive is employed as a senior executive of the
Company from the Effective Time through the Term of this Agreement (as such
terms are hereinafter defined). In this capacity, Executive shall have such
duties and responsibilities as the Company shall designate that are not
inconsistent with Executive's current position with Heekin; provided, that the
Company may assign such additional and/or substitute duties and
responsibilities to Executive during the Term as are reasonably appropriate in
light of the transition of the Company from a publicly owned company to a
wholly-owned subsidiary of Ball Corporation ("Ball"). During the period of his
employment hereunder and except for illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall use his best efforts to devote
substantially all of his business time, attention, skill, and efforts to the
faithful performance of his duties hereunder. During the Term of this
Agreement, Executive shall not be required to relocate from his current
residence; provided, that Executive may be required to travel for business
purposes as reasonably determined by the Company.
2. Term and Effective Time. The "Term of this Agreement" shall mean the
period commencing as of the date of the Effective Time (as defined in the
Merger Agreement of even date herewith by and among the Company, Ball, and Ball
Holdings Corp.) and ending on the date eighteen months following the Effective
Time; provided, however, that if the Effective Time shall not have occurred
prior to April 1, 1993, or, if sooner, upon the termination of the Merger
Agreement, then this Agreement shall be deemed canceled as of the date first
written above, and of no force or effect, and all rights and obligations of the
parties hereunder shall forthwith cease. The Former Arrangement and Former
Employment Agreement is hereby superseded by this Agreement, and of no further
force or effect; provided, that if this Agreement shall be deemed canceled
under this Section 2, then the Former Arrangement and Former Employment
Agreement shall forthwith be reinstated.
3. Compensation. During the Term of this Agreement, the Company shall
pay Executive as compensation salary at an annual rate (the "Salary") of not
less than the Executive's current annual base salary with the Company, plus a
bonus (the "Bonus") at an annual rate not less than 21 percent of Salary. Such
Salary shall be payable in accordance with the customary payroll practices of
the Company, but in no event less frequently than monthly and, except as
otherwise provided in Section 7 hereof, such Bonus shall be payable as soon as
practicable following the Term of this Agreement or, if earlier, termination of
Executive's employment hereunder.
4. Participation in Benefit Plans. Executive shall be entitled to
receive, as of the Effective Time and continuing during the Term of this
Agreement, full and immediate medical coverage, life insurance, disability
insurance, sick leave, vacation benefits, and such other benefits, including,
but not limited to, retirement or profit sharing, pursuant to plans or
otherwise, as are provided to other salaried employees of the Company employed
in comparable professional positions. If Executive's age and years of service
(including for this purpose years of service with the Company) on the date
Executives employment hereunder is terminated are such that Executive would
have been eligible to retire under the broad-based, tax-qualified pension plan
of the Company as in effect on the date first written above, then the Company
shall provide Executive post-retirement medical benefits substantially
comparable to the benefits provided on the date first written above by the
Company to such retirement-eligible individuals. Nothing in the preceding
sentence shall be construed to require the Company to maintain any post-
retirement medical coverage for any employee or former employee of the Company
except as specifically set forth in such sentence. If executive would have
been eligible for benefits under the Heekin Can, Inc. Supplemental Retirement
Plan as in effect on the date first written above (the "SERP") had Executive
terminated employment on such date, then Executive shall receive such benefit
pursuant to the terms of the SERP; provided, that no additional benefits shall
accrue from and after the date first written above; and, provided, further,
that if such Executive would not have been eligible for benefits under the SERP
had Executive terminated employment on the date first written above, then
Executive hereby forfeits all rights and benefits he may have under the SERP.
5. Reimbursement of Expenses. The Company shall pay or reimburse
Executive for all reasonable travel and other expenses incurred by Executive in
performing his obligations under this Agreement. The Company further agrees to
furnish Executive with offices and a secretary and such other assistance and
accommodations as shall be suitable to the character of Executive's position
with the Company and adequate for the performance of his duties hereunder.
6. Termination.
(a) Cause. Subject to the notice provisions set forth below, the
Company may terminate Executive's employment for "Cause" at any time. "Cause"
shall mean termination upon: (1) the willful failure by Executive to
substantially perform his duties with the Company (other than any such failure
resulting from his incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to him by the Company,
which demand specifically identifies the manner in which the Company believes
that he has not substantially performed his duties, (2) the willful engaging
by Executive in conduct which is demonstrably and materially injurious to the
Company, monetarily or otherwise, (3) the conviction of Executive of a felony
or other crime involving theft or fraud, (4) Executive's gross neglect or gross
misconduct in carrying out his duties hereunder, resulting, in either case, in
material harm to the Company, or (5) any material breach by Executive of this
Agreement. For purposes of this subsection (a), no act, or failure to act, on
Executive's part shall be deemed "willful" unless done, or omitted to be done,
by him not in good faith and without the reasonable belief that his action or
omission was in the best interest of the Company. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
of the Board of Directors of the Company (the "Board") or any appropriately
designated Committee of the Board, finding that he has engaged in the conduct
set forth above in this subsection (a) and specifying the particulars thereof
in detail, and Executive shall not have cured such conduct to the reasonable
satisfaction of the Board within ten days of receipt of such resolution.
(b) Notice of Termination. Any termination of Executive's employment
by the Company or by Executive shall be communicated by written Notice of
Termination (as such term is hereinafter defined) to the other party hereto in
accordance with Section 10 hereof. "Notice of Termination" shall mean a notice
that shall indicate the specific provision in this Agreement relied upon with
respect to such termination and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for the termination of Executive's
employment under the provisions so indicated.
7. Compensation Upon Termination. Executive shall be entitled to the
following benefits upon termination of his employment hereunder, provided that
such termination occurs during the Term of this Agreement:
(a) If at any time Executive's employment shall be terminated during
the period beginning on the Effective Time and ending on the 120th day
following the Effective Time (the "Initial Period"): (i) by the Company for
Cause or (ii) by Executive for any reason other than for "Constructive
Termination" (as such term is hereinafter defined), the Company shall pay
Executive his full Salary through the Date of Termination (as such term is
hereinafter defined) at the rate in effect at the time Notice of Termination is
given within 10 days following his date of termination, plus all other amounts
to which he is entitled under any compensation or benefit plan or program of
the Company (other than the Bonus) within 10 days of the date such payments are
due to Executive, and upon the completion of such payments, the Company shall
have no further obligations to him under this Agreement.
(b) If Executive's employment shall be terminated during the Initial
Period by the Company without Cause or by the Executive for Constructive
Termination, then, in addition to the amounts due under such subsection (a),
(i) Executive shall be paid in cash, as soon as practicable following the date
his employment terminates, the lesser of (A) the maximum amount (determined by
Price Waterhouse) which can be paid to Executive without being, or causing any
other payment to be, nondeductible (in whole or in part) by the Company (or any
affiliate of the Company making such payment or providing such benefit) as a
result of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") and (B) 2.99 multiplied by the "base amount" (as defined in Section
280G of the Code) of the Executive as computed on the Effective Time, such cash
amount is referred to herein as the "280G Amount," (ii) Executive shall be paid
his full Salary that would have been payable from the date his employment
terminated until the end of the Term of this Agreement, (iii) Executive shall
be paid his Bonus computed pro rata through the date his employment terminated,
and (iv) Executive shall be paid an additional amount (the "Gross-Up Payment")
such that the net amount retained by Executive, after deduction of any excise
tax imposed by reason of Section 4999 of the Code (the "Excise Tax") on the
payments provided for in subsections (i), (ii), and (iii) hereof and any
federal, state, and local income tax and Excise Tax upon the payment provided
for by this subsection (iv) shall be equal to the payments provided for in
subsections (i), (ii), and (iii) hereof; provided, however, that in the event
of termination of employment because of death or disability of Executive, no
payments under subsections (ii) (to the extent attributable to post-termination
periods), (iii) or (iv) shall be required to be made. As used herein,
"disability" shall have the definition ascribed to it in S 22(e)(3) of the
Code.
(c) If Executive's employment shall be terminated after the Initial
Period for any reason, then, in addition to the amounts described in subsection
(a) of this Section 7, Executive shall be paid in cash, as soon as practicable
following the date his employment terminates, the 280G Amount plus his Bonus
computed pro rata through the date his employment terminated; provided,
however, that if such termination is by the Company without Cause or by the
Executive for Constructive Termination, then the Executive shall also be paid
the amounts described in subsections (ii) and (iv) of Section 7(b).
(d) If the Executive's employment shall not have terminated prior to
the end of the Term of this Agreement, then the Executive shall be paid in
cash, as soon as practicable following the end of the Term of this Agreement,
the 280G Amount plus his Bonus computed pro rata through the end of the Term.
(e) For the purpose of this Agreement, Executive shall be considered
to have terminated his employment for "Constructive Termination" following the
occurrence, without Executive's express written consent, of any material breach
of any terms or conditions of this Agreement by the Company.
(f) If any 280G Amount is paid under this Section 7 under
circumstances that do not obligate the Company to make a Gross-Up Payment, and
in applying the terms of this Section 7, the aggregate payments made to the
Executive are in an amount that would result in any portion of such payments
being nondeductible by reason of Section 280G of the Code, then the Executive
shall have an obligation to pay the Company upon demand and amount equal to the
sum of (i) the excess of the aggregate payments paid to or for the Executive's
benefit over the aggregate payments that could have been paid to or for the
Executive's benefit without any portion of such payments not being deductible
by reason of Section 280G of the Code; and (ii) interest on the amount set
forth in clause (i) of this sentence at the rate provided in Section
1274(b)(2)(B) of the Code from the date of the Executive's receipt of such
excess until the date of such payment.
8. Confidential Information and Competitive Conduct.
(a) Confidential Information. Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret, confidential information,
knowledge, or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not have been or now or hereafter have become public
knowledge (other than by acts by the Executive or representatives of the
Executive in violation of this Agreement). During the Employment Period and
for a period of three years thereafter, the Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
legal process, communicate or divulge any such information, knowledge, or data
to anyone other than the Company and those designated by it.
(b) Covenant Not to Compete or Solicit. So long as the Executive is
employed by the Company hereunder, the Executive shall not offer or sell any
products or services, directly competitive in any market with the business of
the Company or its affiliates, nor shall he render services to any firm,
person, or corporation so competing with the Company, nor shall he have any
interest, direct or indirect, in any business that is so competing with the
business of the Company; provided however, that ownership of 5 percent or less
of any class of debt or equity securities which are publicly traded security
shall not be a violation of this covenant. So long as the Executive is
employed by the Company hereunder, the Executive shall not, directly or
indirectly, (i) solicit any employee of the Company or its affiliates with a
view to inducing or encouraging such employee to leave the employ of the
Company or its affiliates for the purpose of being hired by the Executive or
any employer affiliated with the Executive or (ii) solicit, take away, attempt
to take away, or otherwise interfere with the Company's or its affiliates'
business relationship with any of their respective customers.
(c) In the event of a breach or threatened breach of this Section 8,
the Executive agrees that the Company or its affiliates shall be entitled to
injunctive relief in a court of appropriate jurisdiction to remedy any such
breach or threatened breach, the Executive acknowledging that damages would be
inadequate and insufficient.
9. No Assignments.
(a) This Agreement is personal to each of the parties hereto. No
party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto; provided, however,
that nothing in this paragraph 9 shall preclude (i) Executive from designating
a beneficiary to receive any benefit payable hereunder upon his death or (ii)
the executors, administrators, or other legal representative of Executive or
his estate from assigning any rights hereunder to the person or persons
entitled thereunto. Notwithstanding the foregoing, this Agreement shall be
binding upon and inure to the benefit of any successor corporation to the
Company.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the assets of the Company or the business with respect to
which the duties and responsibilities of Executive are principally related, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the assumption agreement
provided for in this Section 9 or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
10. Indemnification. The Company shall indemnify Executive and hold him
harmless from any cost, expense, or liability arising out of or relating to any
acts or decisions made by him in the course of performing services hereunder
within the scope of employment hereunder, provided such acts or decisions are
in good faith.
11. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective address set forth below, or to such other address
as either party may have furnished to the other in writing in accordance
herewith, except that notice of a change of address shall be effective only
upon actual receipt;
To the Company: Heekin Can, Inc.
11310 Cornell Park Drive
Cincinnati, Ohio 45242
Attention:
To Executive: John A. Haas
7801 Hopper Road
Cincinnati, Ohio 45255
12. Amendments or Additions. No amendment or addition to this Agreement
shall be binding unless in writing and signed by both parties hereto.
13. Section Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
14. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of the other provisions hereof.
15. Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely in such state.
17. Miscellaneous. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The Company agrees to reasonably cooperate with Executive in connection with
any audit covering any period during which payments pursuant to this Agreement
were paid to Executive.
18. Mitigation. Executive shall be under no obligation to mitigate
damages in order to receive any payments to Executive described herein.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first above written.
HEEKIN CAN, INC.
By: /s/Douglas E. Poling
Title:
By: /s/John A. Haas
John A. Haas