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 J. David Tolbert, (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
President, Human Resources and Administration 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 provided they are within a
fifty mile radius of the current Muncie, IN location, (b) perform such duties
other than those set forth above, and/or (c) relinquish one or more of such
offices or other duties, as 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 the 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.
Subsequent to the Initial Term, the employment of the Employee hereunder may be
terminated at the end of any Renewal Term by delivery by either the Employee or
the Company of a written notice to the other part at least (90) ninety days
prior to the end of 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 President, Human
Resources and Administration of the Company and shall perform all duties
commensurate with his position that may be assigned to him by the Chief
Executive Officer of the Company and/or by the Board of Directors of the Company
consistent with such position. The Employee shall devote substantially all of
his time and energies to the business and affairs of the Company and shall use
his best efforts, skills and abilities to promote the interests of the Company
as necessary to diligently and competently perform the duties of his position.
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 $150,000 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 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. The
Company retains the rights to terminate or alter any such plans or policies 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.
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, 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, 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, accept business from, 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) directly or indirectly recruit or otherwise
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.
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 breech 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
provisions of Sections 7, 8 or 9 relating to the time period, scope of
activities or geographic area of restrictions 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, shall be provisions of
Section 7, 8 or 9 other than those described in the preceding sentence are
adjudicated to be invalid or unenforceable, the invalid or unenforceable
provisions shall be deemed amended (with respect only to the jurisdiction in
which such adjudication is made) in such manner as to render them enforceable
and to effectuate as nearly as possible the original intentions and agreement of
the parties.
10. Termination. This Agreement may be terminated prior to the
expiration of the term set forth in Section 2 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. In the event of
termination for disability, the Employee will also be entitled to receive
medical benefits generally available to other disabled employees 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) one year's Base
Compensation; plus (ii) one year's target bonus which Employee would have been
entitled to receive for achieving budget for the year in which Employee's
employment was terminated; plus (iii) continuation of health insurance and other
benefits for one year at the expense of Company; plus full vesting of any
outstanding stock options and the lapsing of any restrictions over any
restricted shares owned by the Employee.
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 ten (10) days after termination.
Payment of the Severance Amount shall be in lieu of all other
financial obligations of the Company to the Employee and all other benefits in
this Agreement shall cease as of the date of termination. The Employee shall
have no obligation to seek other employment or otherwise mitigate damages
hereunder. For the avoidance of doubt, it is understood that the Company will
pay all amounts owed to Employee prior to the date of termination, including
incentive compensation earned up through the date of termination in the same
manner as all other plan participants. Notwithstanding anything in the incentive
compensation plan, Employee need not be employed at the date the incentive
payments are made to be eligible for this payment
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, not 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. David Tolbert
513 S. Pinehurst Lane
Yorktown, IN 47396
(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/ Ian G.H. Ashken
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Ian G.H. Ashken
Its: Vice Chairman and Chief
Financial Officer
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/s/ J. David Tolbert
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J. David Tolbert