Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into this 4th day
of October, 2000 (the "Effective Date"), by and among J. Michael Kirk (the
"Executive"), United States Can Company, having its principal offices at 900
Commerce Drive, Oak Brook, Illinois 60523 (the "Company"), and U.S. Can
Corporation, a Delaware corporation, having its principal offices at 900
Commerce Drive, Oak Brook, Illinois 60523 ("U.S. Can");
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement concerning the
terms of continued employment of the Executive by the Company;
WHEREAS, the Executive, the Company, and U.S. Can have entered into an
employment agreement dated January 25, 2000 (the "Prior Employment Agreement"),
and the Executive, the Company, and U.S. Can have entered into a change in
control agreement dated January 25, 2000 (the "Prior Change in Control
Agreement"), and the parties have agreed that, effective as of the Effective
Date, this Agreement shall govern the terms of the Executive's employment with
the Company, and the Prior Employment Agreement and the Prior Change in Control
Agreement shall both terminate and be of no further effect;
WHEREAS, the Executive and the Company have entered into an agreement
dated January 25, 2000, relating to certain protections as to competition,
confidentiality, inventions, and certain other matters (the "Employee
Agreement"), which the parties have agreed to continue in effect, subject to
certain modifications set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, IT IS HEREBY COVENANTED AND AGREED by the Executive, the
Company, and U.S. Can as follows:
1. DEFINITIONS. Terms used in this Agreement shall be defined as set
forth below:
(a) For purposes of this Agreement, the term "Affiliate" shall mean the
Company and any of its "affiliates" as that term is defined in the
Securities Exchange Act of 1934, as amended.
(b) The term "Agreement Term" shall have the meaning ascribed to it in
paragraph 2(f).
(c) The Executive shall be considered "Disabled" during any period in which
he has a physical or mental disability which renders him incapable,
after reasonable accommodation, of performing his duties under this
Agreement. The Executive shall be
considered "Permanently Disabled" during any period in which (i) he
has a physical or mental disability which renders him incapable, after
reasonable accommodation, of performing his duties under this
Agreement; (ii) such disability is determined by the Executive's
Supervisor to be of a long-term nature; and (iii) the Executive is
eligible for income replacement benefits under the Company's long-term
disability plan during such period of disability. In the event of a
dispute as to whether the Executive is Disabled or Permanently
Disabled, the Company may refer the same to a licensed practicing
physician of the Company's choice, and the Executive agrees to submit
to such tests and examinations as such physician shall deem
appropriate.
(d) The term "Cause" shall have the meaning ascribed to it in paragraph
4(c).
(e) "Date of Termination" means the Executive's last day worked for the
Company, excluding any salary continuation period, provided that the
Executive's employment is terminated in accordance with the provisions
of paragraph 4.
(f) The term "Good Reason" shall have the meaning ascribed to it in
paragraph 4(d).
(g) The Executive's "Supervisor" shall be the person to whom the Executive
reports.
(h) "U.S. Can Stock" is common stock of U.S. Can or a successor to U.S.
Can.
2. PERFORMANCE OF SERVICES. The Executive's employment with the Company
shall be subject to the following:
(a) Subject to the terms of this Agreement, the Company hereby agrees to
employ the Executive during the Agreement Term, and the Executive
hereby agrees to remain in the employ of the Company during the
Agreement Term.
(b) During the Agreement Term, while the Executive is employed by the
Company, the Executive shall devote his full time, energies and talents
to serving as its Executive Vice President, Marketing and Sales, or in
such other position to which the Executive may be appointed by the
Executive's Supervisor from time to time; provided that in no event
shall the Executive be appointed to a position having a rank of less
than Executive Vice President. To the extent the Company determines to
be necessary or appropriate, the Company may change the Executive's
Supervisor, and the Executive's reporting relationships.
(c) The Executive agrees that he shall perform his duties faithfully and
efficiently subject to the directions of the Executive's Supervisor.
The Executive's duties may include providing services for both the
Company and the Affiliates, as determined by the Executive's
Supervisor; provided that the Executive shall not, without his consent,
be assigned duties that would be inconsistent with those of a Executive
Vice President. The
-2-
Executive shall have such authority, power, responsibilities and
duties as are inherent in his position(s) (and the undertakings
applicable to his position(s)) and necessary to carry out his
responsibilities and the duties required of him hereunder.
(d) Notwithstanding the foregoing provisions of this paragraph 2, during
the Agreement Term, the Executive may devote reasonable time to
activities other than those required under this Agreement, including
the supervision of his personal investments, and activities involving
professional, charitable, community, educational, religious and similar
types of organizations, speaking engagements, and similar types of
activities, to the extent that such other activities do not, in the
judgment of his Supervisor, inhibit or prohibit the performance of the
Executive's duties under this Agreement, or conflict in any material
way with the business of the Company or any Affiliate. The Executive
shall not serve on the board of any business, or hold any other
significant position with any business, without the consent of his
Supervisor.
(e) Subject to the terms of this Agreement, the Executive shall not be
required to perform services under this Agreement during any period
that he is Disabled. During the period in which the Executive is
Disabled, the Company may appoint a temporary replacement to assume the
Executive's responsibilities.
(f) The "Agreement Term" shall begin with the commencement of the Initial
Term and shall end at the conclusion of all Renewal Periods. The
"Initial Term" shall be the period beginning on the Effective Date and
ending on the second anniversary of the Effective Date. Thereafter, the
Agreement Term will be automatically extended for 12-month periods (a
"Renewal Period"), unless one party to this Agreement provides notice
of non-renewal to the other at least 90 days before the last day of
the Initial Term or any subsequent Renewal Period.
3. COMPENSATION. Subject to the terms of this Agreement, during the
Agreement Term, while the Executive is employed by the Company, the Company
shall compensate him for his services as follows:
(a) SALARY. The Executive shall receive, for each twelve (12) consecutive
month period beginning on the Effective Date and each anniversary
thereof, in substantially equal monthly or more frequent installments,
an annual base salary of not less than $235,000 (the "Salary"). The
Executive's Salary rate shall be reviewed annually by the Supervisor.
In no event shall the Salary rate of the Executive be reduced to an
amount that is less than the amount specified in this paragraph (a).
(b) INCENTIVE COMPENSATION. The Executive shall participate in the
Company's Management Incentive Plan ("MIP") on terms that are
comparable to the terms applicable to the Company's other senior
executives from time to time; provided that, for each performance
period under the Company's MIP in which any portion of the Agreement
Term occurs, the
-3-
Executive shall be provided with an opportunity for an incentive
payment of at least 50% of the Executive's annual Salary rate
(with such Salary rate determined as provided in the MIP). For the
performance period in which the Executive's termination of employment
occurs, the Executive's eligibility for an incentive compensation award
shall be subject to the provisions of paragraph 5 of this Agreement.
(c) LIFE INSURANCE. The Company shall obtain life insurance coverage on the
Executive's life that is no less favorable than the coverage provided
immediately prior to the Effective Date provided, however, that such
life insurance shall at least provide term coverage with death benefits
equal to two times the Executive's base salary. The life insurance
coverage shall be subject to the Executive's satisfactory completion of
a physical examination and other aspects of the application process.
Death benefits under such coverage shall be payable to the beneficiary
named by the Executive. During the period of the Executive's employment
with the Company, the Company shall pay the premiums with respect to
such policy.
(d) DISABILITY INCOME. The Executive shall receive from the Company
disability income replacement coverage which will provide for
replacement of income according to the Company's plans and arrangements
in effect at the time of the disability during any period in which the
Executive is Disabled if the disability arose during the Agreement Term
and prior to the Executive's Date of Termination. During any period
while the Executive is Disabled and is otherwise entitled to receive
Salary and other amounts under this Agreement (including payment in
lieu of Salary or other amounts pursuant to paragraph 5(b) or 5(c)),
any such Salary and other amounts (or such payments in lieu of Salary
and other amounts) to the Executive shall be reduced by the amount of
any benefits paid for the same period of time under the
Company-provided disability income replacement coverage.
(e) EXPENSES. Subject to the Company's rules and procedures as in effect
from time to time, the Executive is authorized to incur reasonable
expenses for entertainment, traveling, meals, lodging and similar items
in the course of his employment. The Company will reimburse the
Executive for all reasonable expenses so incurred in accordance with
the Company's policies.
(f) VACATION AND HOLIDAYS. During each year of the Agreement Term, the
Executive shall be entitled to four weeks of paid vacation plus the
paid holidays observed by the Company.
(g) CAR ALLOWANCE. During the Agreement Term, the Executive shall be
entitled to a net after-tax car allowance of $900 per month.
(h) BENEFITS. Except as otherwise specifically provided to the contrary in
this Agreement, the Executive shall be provided with the health,
welfare, retirement and other fringe benefits to the same extent and on
substantially the same terms as those benefits are provided by
-4-
the Company from time to time to the Company's other senior management
employees. However, the Company shall not be required to provide a
benefit under this paragraph (h) if such benefit would duplicate (or
otherwise be of the same type as) a benefit specifically required to be
provided under another provision of this Agreement. The Executive shall
complete all forms and physical examinations, and otherwise take all
other similar actions to secure coverage and benefits described in this
paragraph 3, to the extent reasonably determined to be necessary or
appropriate by the Company.
4. TERMINATION. The Executive's employment with the Company during the
Agreement Term may be terminated by the Company or the Executive without any
breach of this Agreement only under the circumstances described in paragraphs
4(a) through 4(f):
(a) DEATH. The Executive's employment hereunder will terminate upon his
death.
(b) PERMANENT DISABILITY. The Company may terminate the Executive's
employment during any period in which he is Permanently Disabled. In
the event of a dispute as to whether the Executive is Permanently
Disabled, the Company may refer the same to a licensed practicing
physician of the Company's choice, and the Executive agrees to submit
to such tests and examinations as such physician shall deem
appropriate.
(c) CAUSE. The Company may terminate the Executive's employment hereunder
at any time for Cause. For purposes of this Agreement, the term "Cause"
shall that any one or more of the following has occurred:
(i) the Executive shall have committed a felony;
(ii) the Executive shall have breached in any material respect any
non-competition provisions of any written agreement between
the Executive and the Company or any of its Affiliates;
(iii) the Executive shall have openly disregarded his
responsibilities to the Company and/or its Affiliates (other
than due to being Disabled which, in the reasonable judgment
of the Board of Directors, causes the Executive to be
incapable of devoting such time and energy) and has failed to
remedy any such action within thirty (30) days of notice to
such Executive by the Board of Directors of such action.
(d) GOOD REASON. The Executive may terminate employment with the Company
for Good Reason. For purposes of this Agreement, the term "Good Reason"
shall mean a material adverse change in the nature or scope of the
Executive's authorities, status, working conditions, duties or
responsibilities, or a material reduction in salary, in benefits, or in
bonus program inconsistent with reductions for similarly situated
employees of the
-5-
Company or inconsistent with the Company's past practices. A change in
the Executive's reporting relationships shall not constitute Good
Reason.
(e) TERMINATION BY EXECUTIVE. The Executive may terminate his employment
hereunder at any time for any reason by giving the Company thirty (30)
days prior written Notice of Termination, provided that nothing in this
Agreement shall require the Executive to specify a reason for any such
termination.
(f) TERMINATION BY COMPANY. The Company may terminate the Executive's
employment hereunder at any time for any reason, by giving the
Executive prior written Notice of Termination, which Notice of
Termination shall be effective immediately, or such later time as is
specified in such notice. The Company shall not be required to specify
a reason for the termination under this paragraph 4(f), provided that
termination of the Executive's employment by the Company shall be
deemed to have occurred under this paragraph 4(f) only if it is not for
reasons described in paragraph 4(b), 4(c), 4(d), or 4(e).
Notwithstanding the foregoing provisions of this paragraph (f), if the
Executive's employment is terminated by the Company in accordance with
this paragraph (f), and within a reasonable time period thereafter, it
is determined by the Executive's Supervisor in good faith that
circumstances existed which would have constituted a basis for
termination of the Executive's employment for Cause (disregarding
circumstances which could have been remedied if notice had been given
in accordance with paragraph 4(c)(iii)), the Executive's employment
will be deemed to have been terminated for Cause in accordance with
paragraph 4(c).
(g) NOTICE OF TERMINATION. Any termination of the Executive's employment by
the Company or the Executive must be communicated by a written Notice
of Termination to the other party hereto. A "Notice of Termination"
shall be dated, indicate the Date of Termination (not earlier than the
date on which the notice is provided), indicate the specific
termination provision in this Agreement relied on, and set forth in
reasonable detail the facts and circumstances, if any, claimed to
provide a basis for termination of the Executive's employment.
(h) EFFECT OF TERMINATION. If, on the Date of Termination, the Executive is
a member of the Board of Directors of the Company or any of the
Affiliates, or holds any other position with the Company or any of the
Affiliates, the Executive shall resign from all such positions as of
the Date of Termination.
5. RIGHTS UPON TERMINATION. The Executive's rights to payment and
benefits under this Agreement for periods after his Date of Termination shall be
determined in accordance with the following provisions of this paragraph 5:
(a) If the Executive's Date of Termination occurs during the Agreement Term
for any reason, then:
-6-
(i) The Executive shall receive his Salary from the Company for
the period ending on the Date of Termination.
(ii) The Executive shall receive any required payment for accrued
but unused vacation days from the Company.
(iii) If the Date of Termination occurs after the end of a
performance period and prior to the payment of the incentive
compensation award (as described in paragraph 3(b)) for the
period, the Executive shall be paid any incentive compensation
award at the regularly scheduled time.
(iv) Any other required payments or benefits to be provided to the
Executive by the Company.
Except as may otherwise be expressly provided to the contrary in this
Agreement, nothing in this Agreement shall be construed as requiring
the Executive to be treated as employed by the Company for purposes of
any employee benefit plan or arrangement following the date of the
Executive's Date of Termination.
(b) If the Executive's Date of Termination occurs during the Agreement Term
under circumstances described in paragraph 4(a) (relating to the
Executive's death) or paragraph 4(b) (relating to the Executive's being
Permanently Disabled), then, in addition to the amounts payable in
accordance with paragraph 5(a):
(i) The Executive (or his estate) shall receive from the Company
periodic payments of an amount equal to not less than twelve
(12) months of Salary (based on the Salary rate in effect on
the Date of Termination); provided, however, that such
payments shall be offset by the amount of any life for
disability insurance benefits provided by the Company or any
of its Affiliates as a result of the Executive's death or
Permanent Disability.
(ii) The Executive (or his estate) shall receive from the Company
payment of the award under the MIP for the performance period
in which the Date of Termination occurs, based on actual
performance for the entire period; provided, however, that
such award shall be subject to a pro-rata reduction to reflect
the portion of the performance period following the Date of
Termination. Payment under this paragraph (ii) of any amount
shall be made at the regularly scheduled time for payment of
such amounts to active employees and on a non-discriminatory
basis.
(c) If the Executive's Date of Termination occurs during the Agreement Term
under circumstances described in paragraph 4(d) (relating to
termination by the Executive for Good Reason) or paragraph 4(f)
(relating to termination by the Company without Cause), then:
-7-
(i) The Executive shall receive from the Company, for the
Severance Period, continuing Salary payments at the Salary
rate in effect on the Date of Termination, in monthly or more
frequent installments. The "Severance Period" shall be the
period beginning on the Date of Termination and continuing
through the earliest to occur of:
(A) the eighteen (18) month anniversary of the Date of
Termination;
(B) the date of the Executive's death; or
(C) the date, if any, of the breach by the Executive of
the provisions of the Employee Agreement.
(ii) Provided that the Executive is not in actual or threatened
breach of any of the covenants contained in the Employee
Agreement, the Executive shall receive from the Company
payment of the award under the MIP for the performance period
in which the Date of Termination occurs, based on actual
performance for the entire period; provided, however, that
such award shall be subject to a pro-rata reduction to reflect
the portion of the performance period following the Date of
Termination. Payment, if any, under this paragraph (ii) of any
amount shall be made at the regularly scheduled time for
payment of such amounts to active employees, and on a
non-discriminatory basis.
Notwithstanding the foregoing provisions of this paragraph 5, no
payment will be made or benefit provided under this paragraph 5(c)
unless (I) the Executive first executes a release in the form attached
as Supplement A to this Agreement, and (II) to the extent any portion
of such release is subject to the seven-day revocation period
prescribed by the Age Discrimination in Employment Act, as amended, or
to any similar revocation period in effect on the date of termination
of the Executive's employment, such revocation period has expired.
(d) If the Executive's Date of Termination occurs during the Agreement Term
under circumstances described in paragraphs 4(c) (relating to Cause) or
4(e) (relating to voluntary resignation), the Company shall have no
obligation to make payments of Salary or any incentive compensation
award or provide benefits under the Agreement for periods after the
Executive's Date of Termination.
6. OTHER BENEFITS.
(a) Except as may be otherwise specifically provided in an amendment of
this Agreement adopted in accordance with paragraph 12, in the event of
a termination of employment during the Agreement Term, the Executive
shall not be eligible to receive any benefits that may be otherwise
payable to or on behalf of the Executive pursuant to the terms of
-8-
any severance pay arrangement of the Company (or any Affiliate),
including without limitation, the United States Can Company Executive
Severance Plan (the "Executive Severance Plan"), or any other
arrangement of the Company (or any Affiliate), providing benefits upon
involuntary termination of employment.
(b) After the Agreement Term has expired, the Executive shall be designated
as an eligible participant in the Executive Severance Plan. The Company
agrees that the Executive Severance Plan will not be amended or
terminated on or after the Effective Date as to the Executive in a
manner that would adversely affect the Executive.
7. DUTIES ON TERMINATION.
(a) Subject to the terms and conditions of this Agreement, during the
period beginning on the date of delivery of a Notice of Termination,
and ending on the Date of Termination, the Executive shall continue to
perform his duties as set forth in this Agreement, and shall also
perform such services for the Company as are reasonably necessary for a
transition to the Executive's successor, if any. Notwithstanding the
foregoing provisions of this paragraph 7, the Company may suspend the
Executive from performing his duties under this Agreement following the
delivery of a Notice of Termination providing for the Executive's
resignation, or delivery by the Company of a Notice of Termination
providing for the Executive's termination of employment for any reason;
provided, however, that during the period of suspension (which shall
end on the Date of Termination), the Executive shall continue to be
treated as employed by the Company for other purposes, and his rights
to compensation or benefits shall not be reduced by reason of the
suspension.
(b) Following the Date of Termination, the Executive agrees to return to
the Company any keys, credit cards, passes, confidential documents or
material, or other property belonging to the Company or its Affiliates,
and to return all writings, files, records, correspondence, notebooks,
notes and other documents and things (including any copies thereof)
containing any trade secrets of the Company or its Affiliates. For
purposes of the preceding sentence, the term "trade secrets" shall have
the meaning ascribed to it under the Illinois Trade Secrets Act or, if
such act is repealed, the Uniform Trade Secrets Act.
8. MITIGATION AND SET-OFF. The Executive shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise. Except as otherwise specifically provided in this
Agreement, the Company shall not be entitled to set off against the amounts
payable to the Executive under this Agreement any amounts earned by the
Executive in other employment after termination of his employment with the
Company, or any amounts which might have been earned by the Executive in other
employment had he sought such other employment.
-9-
9. CHANGE IN CONTROL. The Company and the Executive have agreed that,
effective as of the Effective Date of this Agreement, the Employee Agreement
shall be amended as set forth in Exhibit B to this Agreement, which is attached
to and forms a part of this Agreement. As a result, the Executive shall continue
to be subject to the restrictions in paragraphs 1(a) and 1(b) of the Employee
Agreement (relating to solicitation and competition) without regard to the
occurrence of any change in control.
10. ASSISTANCE WITH CLAIMS. The Executive agrees that, for the period
beginning on the Effective Date, and continuing for a reasonable period after
the Executive's Date of Termination, the Executive will assist the Company and
the Affiliates in defense or prosecution of any claims that may be made by or
against the Company and the Affiliates, to the extent that such claims may
relate to services performed by the Executive for the Company or the Affiliates.
The Executive agrees to promptly inform the Company if he becomes aware of any
lawsuits involving such claims that may be filed against the Company or any
Affiliate. The Company agrees to provide legal counsel to the Executive in
connection with such assistance (to the extent legally permitted), and to
reimburse the Executive for all of the Executive's reasonable out-of- pocket
expenses associated with such assistance. The Executive also agrees to promptly
inform the Company if he is asked to assist in any investigation of the Company
or the Affiliates (or their actions) that may relate to services performed by
the Executive for the Company or the Affiliates, regardless of whether a lawsuit
has then been filed against the Company or the Affiliates with respect to such
investigation.
11. NONALIENATION. The interests of the Executive under this Agreement
are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
Executive or the Executive's beneficiary.
12. AMENDMENT. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing, provided that any such agreement by the
Company that includes a substantive amendment must be authorized in writing by
the Chief Executive Officer of U.S. Can. So long as the Executive lives, no
person, other than the parties hereto, shall have any rights under or interest
in this Agreement or the subject matter hereof.
13. APPLICABLE LAW. The provisions of this Agreement shall be construed
in accordance ith the laws of the State of Illinois, without regard to the
conflict of law provisions of any state.
14. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
15. WAIVER OF BREACH. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party (i)
will be effective unless in writing signed by
-10-
such party; and (ii) will operate or be construed as a waiver of any subsequent
breach by such other party of any similar or dissimilar provisions and
conditions at the same or any prior or subsequent time. The failure of any party
hereto to take any action by reason of such breach will not deprive such party
of the right to take action at any time while such breach continues.
16. SUCCESSORS, ASSUMPTION OF CONTRACT. This Agreement is personal to
the Executive and may not be assigned by the Executive without the written
consent of the Company. However, to the extent that rights or benefits under
this Agreement otherwise survive the Executive's death, the Executive's heirs
and estate shall succeed to such rights and benefits pursuant to the Executive's
will or the laws of descent and distribution; provided that the Executive shall
have the right at any time and from time to time, by notice delivered to the
Company, to designate or to change the beneficiary(ies) with respect to such
benefits. This Agreement shall be binding upon and inure to the benefit of the
Company and U.S. Can, as applicable, and any successor of the Company or U.S.
Can, as applicable, subject to the following:
(a) The Company and U.S. Can, as applicable, will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the
Company or U.S. Can, as applicable, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that
the Company or U.S. Can, as applicable, would be required to perform it
if no such succession had taken place.
(b) If the Executive is transferred to employment with an Affiliate
(including a successor to the Company), such transfer shall not
constitute a termination of employment for purposes of this Agreement,
provided that the Affiliate agrees to assume this Agreement and be
substituted for the Company under this Agreement.
(c) After a successor assumes this Agreement in accordance with this
paragraph 16, only such successor shall be liable for amounts payable
after such assumption, and no other companies shall have liability for
amounts payable after such assumption.
17. NOTICES. Notices and all other communications provided for in this
Agreement shall be in writing and shall be (i) delivered personally, effective
immediately, (ii) sent by certified mail, postage prepaid effective three days
after deposit, (iii) sent by facsimile transmission, effective upon confirmation
of transmission and deposit of a hard copy for delivery by regular mail, or (iv)
sent by prepaid overnight or international courier service, effective two days
after deposit, to the parties at the addresses set forth below (or such other
addresses as shall be specified by the parties by like notice); provided,
however, that in no event shall any such communications be deemed to be given
later than the date they are actually received. Communications that are to be
delivered by the U.S. mail or by overnight service are to be delivered to the
addresses set forth below:
-11-
to the Company by mail:
U.S. Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60523
Attention: General Counsel
to the Company by facsimile:
630/572-0822
To Executive:
at the address of the Executive as set forth in the payroll records at
the Company.
18. ARBITRATION OF ALL DISPUTES. Any dispute as to any claim under this
Agreement (including, without limitation, disputes arising under Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, and the
Age Discrimination in Employment Act) shall be settled by arbitration in
Chicago, Illinois by an arbitrator, who shall be appointed pursuant to the rules
of the American Arbitration Association. The arbitration shall be conducted
promptly and expeditiously in accordance with the National Rules for Resolution
of Employment Disputes of American Arbitration Association. Any award issued as
a result of such arbitration shall be final and binding on the parties, and
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof; provided, however, that any award issued as a
result of arbitration shall be reviewable de novo by a court of competent
jurisdiction for errors of law. Notwithstanding the foregoing, the parties
hereto shall not be entitled to, and no award shall include in whole or in part,
punitive damages or exemplary damages.
19. LEGAL AND ENFORCEMENT COSTS. The provisions of this paragraph 19
shall apply if it becomes reasonably necessary for the Executive to retain legal
counsel or incur other costs and expenses in connection with either enforcing
any right(s) under this Agreement or defending against any allegations of breach
of this Agreement by the Company or U.S. Can:
(a) The Executive shall be entitled to recover from the Company reasonable
attorneys' fees, costs and expenses incurred by him in connection with
such enforcement or defense.
(b) Payments required under this paragraph 19 shall be made by the Company
to the Executive (or directly to the Executive's attorney) promptly
following submission to the Company of appropriate documentation
evidencing the incurrence of such attorneys' fees, costs, and expenses.
-12-
(c) The Executive shall be entitled to select his legal counsel; provided,
however, that such right of selection shall not affect the requirement
that any costs and expenses reimbursable under this paragraph 19 be
reasonable.
(d) The Executive's rights to payments under this paragraph 19 shall not be
affected by the final outcome of any dispute with the Company or U.S.
Can; provided, however, that to the extent that the arbitrators shall
determine that under the circumstances recovery by the Executive of all
or a part of any such fees and costs and expenses would be unjust, the
Executive shall not be entitled to such recovery; and to the extent
that such amount have been recovered by the Executive previously, the
Executive shall promptly repay such amounts to the Company.
20. SURVIVAL OF AGREEMENT. Except as otherwise expressly provided in
this Agreement, the rights and obligations of the parties to this Agreement
shall survive the termination of the Executive's employment with the Company.
21. ENTIRE AGREEMENT. Except as otherwise provided herein:
(a) This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof.
(b) This Agreement supersedes all prior or contemporaneous agreements, if
any, between the parties relating to the subject matter hereof
(including, without limitation, the Prior Employment Agreement and the
Prior Change in Control Agreement), and the Prior Employment Agreement
and the Prior Change in Control Agreement shall be without effect on
and after the Effective Date of this Agreement.
(c) Notwithstanding the foregoing, but subject to paragraph (d) below,
nothing in this Agreement shall be construed to limit any Company
policy or agreement that is otherwise applicable relating to compliance
with laws or the Employee Agreement.
(d) The Employee Agreement shall continue in effect, subject to the terms
of paragraph 9 of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
-13-
IN WITNESS WHEREOF, the Executive has hereunto set his hand, and the
Company and U.S. Can have caused these presents to be executed in their names
and on their behalf, all as of the Effective Date.
/s/ J. Michael Kirk
----------------------------------------------
J. Michael Kirk
U.S. Can Corporation
By /s/ Paul W. Jones
-------------------------------------------
Its Chairman, President and
Chief Executive Officer
--------------------------------------
United States Can Company
By /s/ Paul W. Jones
-------------------------------------------
Its Chairman, President and
Chief Executive Officer
--------------------------------------
Supplement A
RELEASE OF CLAIMS
1. This document is attached to, is incorporated into, and forms a part
of, an agreement (the "Agreement") by and between United States Can Company (the
"Company") and J. Michael Kirk (the "Executive"). The Executive, on behalf of
himself and the other Executive Releasors, releases and forever discharges the
Company and the other Company Releasees from any and all Claims which the
Executive now has or claims, or might hereafter have or claim (or the other
Executive Releasors may have, to the extent that it is derived from a Claim
which the Executive may have), against the Company Releasees based upon or
arising out of any matter or thing whatsoever, occurring or arising on or before
the date of this Release of Claims, to the extent that the Claim arises out of
or relates to the Executive's employment by the Company and its Affiliates
(including his service as a director of the Company and its Affiliates) and/or
the Executive's termination or resignation therefrom, and shall include, without
limitation, Claims arising out of or related to the Agreement, and Claims
arising under any local, state, or federal law dealing with employment
discrimination, including the Age Discrimination in Employment Act as amended by
the Older Workers Benefit Protection Act.
For purposes of this Release of Claims, the terms set forth below shall
have the following meanings:
(a) The term "Agreement" shall include the Agreement and this Supplement,
and including the plans and arrangements under which the Executive is
entitled to benefits in accordance with the Agreement.
(b) The term "Claims" shall include any and all rights, claims, demands,
debts, dues, sums of money, accounts, attorneys' fees, complaints,
judgments, executions, actions and causes of action of any nature
whatsoever, cognizable at law or equity.
(c) The term "Company Releasees" shall include the Company and its
Affiliates (as defined in the Agreement), and their officers,
directors, trustees, members, representatives, agents, employees,
shareholders, partners, attorneys, and insurers, and their predecessors
and successors.
(d) The term "Executive Releasors" shall include the Executive, and his
heirs, representatives, agents, insurers, and any other person claiming
through the Executive.
2. The following provisions are applicable to and made a part of this
Release of Claims:
(a) By this Release of Claims, the Executive Releasors do not release or
waive any right or claim which they may have under the Age
Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act, which arises after the date of execution of
this Release of Claims.
-15-
(b) In exchange for this Release of Claims, the Executive hereby
acknowledges that he has received separate consideration beyond that to
which he is otherwise entitled under the Company's policy or applicable
law.
(c) The Company hereby expressly advises the Executive to consult with an
attorney of his choosing prior to executing this Release of Claims.
(d) The Executive has twenty-one (21) days from the date of presentment to
consider whether or not to execute this Release of Claims. In the event
of such execution, the Executive has a further period of seven (7) days
from the date of said execution in which to revoke said execution. This
Release of Claims will not become effective until expiration of such
revocation period.
(e) This Release of Claims and the commitments and obligations of all
parties thereunder:
(i) shall become final and binding immediately following the
expiration of the Executive's right to revoke the execution of this
release in accordance with paragraph 2(d) of this Release of Claims;
(ii) shall not become final and binding until the expiration of
such right to revoke; and
(iii) shall not become final and binding if the Executive revokes
such execution.
3. The Executive hereby acknowledges that he has carefully read and
understands the terms this Release of Claims and each of his rights as set forth
therein.
/s/ J. Michael Kirk
------------------------------------------
J. Michael Kirk
Date: 9/29/00
------------------------------------
State of
------------------------
County of
------------------------
Subscribed Before Me This
Day of , .
- ------ ---------- -----------
- -------------------------------
Notary Public
-16-
Supplement B
AMENDMENT OF EMPLOYEE AGREEMENT
This document is attached to, is incorporated into, and forms a part
of, an agreement (the "Agreement") made and entered into ____________, 2000 (the
"Effective Date"), by and among J. Michael Kirk, United States Can Company, and
U.S. Can Corporation. The Employee Agreement (as defined in the Agreement) is
hereby amended effective as of the Effective Date by substituting the following
for all of paragraph 2 thereof:
"2. Reserved."
-17-