EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of January 1, 2002, is
entered into between Alltrista Corporation, a Delaware corporation (the
"Company") and Ian G.H. Ashken, (the "Employee").
WITNESSETH:
WHEREAS, the Company desires to continue to employ the Employee and to
be assured of his services on the terms and conditions hereinafter set forth;
and
WHEREAS, the Employee is willing to continue such employment on such
terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the Company and the Employee hereby agree as
follows:
1. Employment. The Company hereby employs the Employee as Vice
Chairman, Chief Financial Officer and Company Secretary of the Company, and the
Employee accepts such employment, upon the terms and subject to the conditions
set forth in this Agreement. Notwithstanding the foregoing, it is understood and
agreed that the Employee from time to time may (a) be appointed to additional
offices or to different offices than those set forth above, (b) perform such
duties other than those set forth above, and/or (c) relinquish one or more of
such offices or other duties, as each may be mutually agreed by and between the
company and the Employee; and, that no such action shall be deemed or construed
to otherwise amend or modify any of the remaining terms or conditions of this
Agreement.
2. Term. The term of this Agreement shall be two (2) years, commencing
on the date hereof and ending on the second anniversary of such date (the
"Initial Term"), subject to earlier termination pursuant to the provisions of
Section 10. The employment of the Employee shall automatically continue
hereunder following the Initial Term for successive one (1) year periods (the
"Renewal Terms") unless the Company or the Employee gives written notice to the
other at least (90) ninety days prior to the end of the Initial Term or any
Renewal Term.
3. Duties. During the term of this Agreement, the Employee shall,
subject to the provisions of Section 1 above, serve as Vice Chairman, Chief
Financial Officer and Company Secretary of the Company and shall perform all
duties commensurate with his position that may be assigned to him by the Board
of Directors of the Company consistent with such position. The Employee shall
devote such time and energy to the business and affairs of the Company as he
deems reasonably necessary to perform the duties of this position and shall use
his best efforts, skills and abilities to promote the interests of the Company.
It is acknowledged and agreed that the Employee may not be required to devote
his full time and energy to the affairs of the Company, except as he from time
to time, in the exercise of his business judgment, may deem necessary or
appropriate. Without limiting the generality of the foregoing, the Company
hereby acknowledges that the Employee has certain responsibilities to the Marlin
group of companies and the Company agrees that nothing contained in this
Agreement shall interfere with such responsibilities, provided that the Employee
otherwise has performed his duties on behalf of the Company hereunder.
4. Compensation and Benefits.During the term of this Agreement, the
Company shall pay to the Employee, and the Employee shall accept from the
Company, as compensation for the performance of services under this Agreement
and the Employee's observance and performance of all of the provisions hereof, a
salary of $250,000 per year (the "Base Compensation"). The Base Compensation
shall be reviewed annually and shall be increased by a minimum of the Consumer
Price Index. In addition, the Employee shall be eligible for a bonus package
based on performance. The decision as to whether to pay the Employee a bonus, as
well as the amounts and terms of any such bonus package, shall be determined by
the Compensation Committee of the Board of Directors as part of its annual
budget review process. The bonus program shall give Employee the opportunity to
earn up to 50% of Base Compensation each year for achieving the Company's
earnings per share budget and up to 100% of Base Compensation for achieving 110%
of the Company's earnings per share budget. The Employee's salary shall be
payable in accordance with the normal payroll practices of the Company and shall
be subject to withholding for applicable taxes and other amounts. During the
term of this Agreement, the Employee shall be entitled to participate in or
benefit from, in accordance with the eligibility and other provisions thereof,
such medical, insurance, and other fringe benefit plans or policies as the
Company may make available to, or have in effect for, its personnel with
commensurate duties from time to time. This will include maintaining a
split-dollar life insurance policy (the "Life Insurance Policy") on the Employee
in the amount of $3 million, the annual premium not to exceed $30,000. The
Company retains the rights to terminate or alter any such plans or policies,
other than the Life Insurance Policy, from time to time. The Employee shall also
be entitled to vacations, sick leave and other similar benefits in accordance
with policies of the Company from time to time in effect for personnel with
commensurate duties.
In addition to the benefits noted above the employee shall receive a grant of
20,000 restricted shares of the Company's common stock (the "Restricted Stock")
on the effective date of this agreement. The restrictions shall lapse upon the
earlier of (i) the
date that the stock price of the common stock of the Company equals or exceeds
twenty-five dollars ($25.00) or (ii) the date there is a change of control (as
defined in Section 2.01 of the 1998 Restricted Stock Plan) of the Company. The
number of shares granted and the target share price of $25.00 shall be adjusted
for changes in the common stock as outlined in Section 5.05 of the Restricted
Stock Plan or as otherwise mutually agreed in writing between the parties. The
terms of the Restricted Stock shall be set forth in a Restricted Stock Award
Agreement. Future restricted share grants shall be considered by the
compensation committee of the Board of Directors on an annual basis.
5. Reimbursement of Business Expenses. During the term of this
Agreement, upon submission of proper invoices, receipts or other supporting
documentation satisfactory to the Company and in specific accordance with such
guidelines as may be established from time to time by the Company's Board of
Directors, the Employee shall be reimbursed by the Company for all reasonable
business expenses actually and necessarily incurred by the Employee on behalf of
the Employer in connection with the performance of services under this
Agreement.
6. Representation of Employee. Except as set forth in Paragraph 3
hereof, the Employee represents and warrants that that he is not party to, or
bound by, any agreement or commitment, or subject to any restriction, including
but not limited to agreements related to previous employment containing
confidentiality or non compete covenants, which in the future may have a
possibility of adversely affecting the business of the Company or the
performance by the Employee of his material duties under this Agreement.
7. Confidentiality. (For purposes of this Section 7, all references to
the Company shall be deemed to include the Company's subsidiary corporations.)
(a) Confidential Information. The Employee acknowledges that
he will have knowledge of, and access to, proprietary and confidential
information of the Company, including, without limitation, inventions, trade
secrets, technical information, know-how, plans, specifications, methods of
operations, financial and marketing information and the identity of customers
and suppliers (collectively, the "Confidential Information"), and that such
information, even though it may be contributed, developed or acquired by the
Employee, constitutes valuable, special and unique assets of the Company
developed at great expense which are the exclusive property of the Company.
Accordingly, the Employee shall not, either during or subsequent to the term of
this Agreement, use, reveal, report, publish, transfer or otherwise disclose to
any person, corporation or other entity, any of the Confidential Information
without the prior written consent of the Company, except to responsible officers
and employees of the Company and other responsible persons who are in a
contractual or fiduciary relationship with the Company and who have a need for
such information for purposes in the best interests of the Company, and except
for such information which is or becomes of general public knowledge from
authorized sources other than the Employee.
The Employee acknowledges that the Company would not enter into this Agreement
without the assurance that all such confidential and proprietary information
will be used for the exclusive benefit of the Company.
(b) Return of Confidential Information. Upon the termination
of Employee's employment with the Company, the Employee shall promptly deliver
to the Company all drawings, manuals, letters, notes, notebooks, reports and
copies thereof and all other materials relating to the Company's business.
8. Noncompetition. (For purposes of this Section 8, all references to
the Company shall be deemed to include the Company's subsidiary corporations).
During the term set forth below, the Employee will not utilize his special
knowledge of the business of the Company and his relationships with customers
and suppliers of the Company to compete with the Company. During the term of
this Agreement and for a period of twelve (12) months after the expiration or
termination of this Agreement (or twenty four (24) months in the event of the
termination of this Agreement by the Company without Cause as defined below),
the Employee shall not engage, directly or indirectly or have an interest,
directly or indirectly, anywhere in the United States of America or any other
geographic area where the Company does business or in which its products are
marketed, alone or in association with others, as principal, officer, agent,
employee, capital, lending of money or property, rendering of services or
otherwise, in any business directly competitive with or similar to that engaged
in by the Company (it being understood hereby, that the ownership by the
Employee of 2% or less of the stock of any company listed on a national
securities exchange shall not be deemed a violation of this Section 8). During
the same period, the Employee shall not, and shall not permit any of his
employees, agents or others under his control to, directly or indirectly, on
behalf of himself or any other person, (i) call upon, or solicit the business of
any person who is, or who had been at any time during the preceding two years, a
customer of the Company or any successor to the business of the Company, or
otherwise divert or attempt to divert any business from the Company or any such
successor, or (ii) solicit or induce any person who is an employee of, or
otherwise engaged by, the Company or any successor to the business of the
Company to terminate his or her employment or other relationship with the
Company or such successor. The Employee shall not at any time, directly or
indirectly, use or purport to authorize any person to use any name, mark, logo,
trade dress or other identifying words or images which are the same as or
similar to those used at any time by the Company.
9. Remedies. The restrictions set forth in Section 7 and 8 are
considered by the parties to be fair and reasonable. The Employee acknowledges
that the Company would be irreparably harmed and that monetary damages would not
provide an adequate remedy in the event of a breach of the provisions of Section
7 or 8. Accordingly, the Employee agrees that, in addition to any other remedies
available to the Company, the Company shall be entitled to seek injunctive and
other equitable relief to secure the enforcement of these provisions. If any
provision of Sections 7, 8 or 9 relating to the time period, scope of activities
or geographic area of restriction is declared by a court of competent
jurisdiction to exceed the maximum permissible time period, scope of
activities or geographic area, as the case may be, then any such provision of
Section 7, 8 or 9 that is adjudicated to be invalid or unenforceable shall be
deemed amended (with respect only to the jurisdiction in which such adjudication
is made) in such manner as to render it enforceable and to effectuate as nearly
as possible the original intentions and agreement of the parties.
10. Termination. This Agreement may be terminated upon the occurrence
of any of the events set forth in, and subject to the terms of, this Section 10.
(a) Death. This Agreement will terminate immediately and
automatically upon the death of the Employee.
(b) Disability. This Agreement may be terminated at the
Company's option, immediately upon written notice to the Employee, if the
Employee shall suffer a permanent disability. For the purpose of this Agreement,
the term "permanent disability" shall mean the Employee's inability to perform
his duties under this Agreement for a period of 120 consecutive days or for an
aggregate of 180 days, whether or not consecutive, in any twelve month period,
due to illness, accident or any other physical or mental incapacity, as
reasonably determined by the Board of Directors of the Company.
(c) Cause. This Agreement may be terminated at the Company's
option, immediately upon written notice to the Employee, upon: (i) breach by the
Employee of any material provision of this Agreement not cured within ten (10
days) after written notice of such breach is given by the Company to the
Employee; (ii) gross negligence or willful misconduct of the Employee in
connection with the performance of his duties under this Agreement, or
Employee's willful refusal to perform any of his duties or responsibilities
required pursuant to this Agreement; or (iii) fraud, criminal conduct or
embezzlement by the Employee.
(d) Without Cause. This Agreement may be terminated pursuant
to the terms of Section 2 or on thirty (30) days written notice (the thirtieth
day following such notice being herein sometimes called the "Termination Date")
by the Company without cause, subject to the following provision.
If the Employee's employment is terminated by the Company
without Cause, or upon Disability, the Employee shall receive an amount (the
"Severance Amount") equal to the sum of the following: (i) two year's Base
Compensation; plus (ii) two year's target bonus which Employee would have been
entitled to receive for the year in which Employee's employment was terminated;
plus (iii) continuation of health insurance and other benefits for two years at
the expense of Company; plus full vesting of any outstanding stock options on
Company stock, the lapsing of any restrictions over any restricted shares of
Company stock owned by the Employee and the prepayment of any outstanding
amounts under the Employee's split-dollar life insurance policy.
The cash portion of the Severance Amount shall be paid to the
Employee as promptly as practicable after the date of Termination and in no
event later than two (2) business days after termination.
Payment of the Severance Amount shall be in lieu of all other
financial obligations of the Company to the Employee under this Agreement and
all other benefits hereunder shall cease as of the date of termination. The
Employee shall have no obligation to seek other employment or otherwise mitigate
damages hereunder.
11. Miscellaneous.
(a) Survival. The provisions of Sections 7, 8 and 9 shall
survive the termination of this Agreement.
(b) Entire Agreement.This Agreement, sets forth the entire
understanding of the parties and merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof.
(c) Modification. This Agreement may not be modified or
terminated orally; and no modification, termination or attempted waiver of any
of the provisions hereof shall be binding unless in writing and signed by the
party against whom the same is sought to be enforced; provided, however, that
the Employee's compensation may be increased at any time by the Company without
in any way affecting any of the other terms and conditions of this Agreement,
which in all other respects shall remain in full force and effect.
(d) Waiver. Failure of a party to enforce one or more of the
provisions of this Agreement or to require at any time performance of any of the
obligations hereof shall not be construed to be a waiver of such provisions by
such party nor to in any way affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, nor to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
(e) Successors and Assigns. Neither party shall have the right
to assign this Agreement, or any rights or obligations hereunder, without the
consent of the other party.
(f) Communications. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been given at the time personally delivered or when mailed in any United
States post office enclosed in a registered or certified postage prepaid
envelope and addressed to the recipient's address set forth below, or to such
other address as any party may specify by notice to the other party; provided,
however, that any notice of change of address shall be effective only upon
receipt.
To the Company: Alltrista Corporation
Suite B-302
555 Theodore Fremd Avenue
Rye, New York 10580
Attention: Chief Executive Officer
To the Employee: Mr. Ian G.H. Ashken
22 Bluewater Hill
Westport CT 06880
(g) Severability. If any provision of this Agreement is held
to be invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the validity and enforceability
of the other provisions of this Agreement and the provision held to be invalid
or unenforceable shall be enforced as nearly as possible according to its
original terms and intent to eliminate such invalidity or unenforceability.
(h) Jurisdiction; Venue. This Agreement shall be subject to
the exclusive jurisdiction of the courts of New York County, New York. Any
breach of any provision of this Agreement shall be deemed to be a breach
occurring in the State of New York and the parties irrevocably and expressly
agree to submit to the jurisdiction of the courts of the State of New York or
the Federal Courts having concurrent geographic jurisdiction, for the purpose of
resolving any disputes among them relating to this Agreement or the transactions
contemplated by this Agreement.
(i) Governing Law. This Agreement is made and executed and
shall be governed by the laws of the State of New York, without regard to the
conflicts of law principles thereof.
IN WITNESS WHEREOF, each of the parties hereto have duly
executed this Agreement as of the date set forth above.
ALLTRISTA CORPORATION
By: /s/ Martin E. Franklin
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Martin E. Franklin
Its: Chairman and Chief Executive
Officer
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/s/ Ian G.H. Ashken
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Ian G.H. Ashken