EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is effective as of March 9,
2005 (the "Effective Date"), by and between Anchor Glass Container Corporation
(the "Company"), and Xxxxx X. Xxxx (the "Executive").
WHEREAS, the Company has employed the Executive as its Vice President
and acting Chief Financial Officer and wishes to continue to employ the
Executive;
WHEREAS, the Company and the Executive have reached agreement concerning
the terms and conditions of his continued employment with the Company and wish
to formalize that agreement;
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions stated in this Agreement, the Company and the Executive hereby agree
as follows:
I. EMPLOYMENT TERM.
A. EMPLOYMENT. The Company hereby employs the Executive and the
Executive hereby accepts employment with the Company as Vice President.
B. TERM OF EMPLOYMENT. The term of employment ("Employment Term") under
this Agreement shall commence on the Effective Date and shall continue
thereafter until two (2) years from the Effective Date, unless sooner terminated
by either party in accordance with the provisions of this Agreement.
II. DUTIES.
A. DUTIES. During the Employment Term, the Executive shall continue to
perform the duties assigned to him by the Company's Chief Executive Officer (the
"CEO") or the Company's Board of Directors (the "Board"), from time to time
after commencement of the Effective Date; provided that the Executive shall not
be assigned tasks inconsistent with those of an officer of the Company.
Executive's services shall be primarily performed at the Company's offices in
Tampa, Florida.
1. The Executive shall:
(a) serve as a member of the interim Operating Committee of the
Company reporting to the Board through the Chairman of the Board, until such
date as the Board appoints a CEO or otherwise determines to terminate the
interim Operating Committee;
(b) serve as acting Chief Financial Officer until such date as the
Board appoints a Chief Financial Officer or determines otherwise; and
(c) devote substantially all of his business time and use his
reasonable best efforts, talents, knowledge and experience to serve the Company
and to promote its interests.
2. The Executive shall perform his duties diligently and competently
and shall act in conformity with the Company's written and oral policies and
within the limits, budgets and business plans set by the Company. The Executive
shall at all times during the Employment Term strictly adhere to and obey all of
the rules and regulations in effect from time to time relating to the conduct of
the executives of the Company. The Executive shall not engage in consulting work
or any trade or business for his own account or for or on behalf of any other
person, firm or company that competes, conflicts or interferes with the
performance of his duties hereunder in any material way.
III. COMPENSATION AND BENEFITS. During the Employment Term, the Company shall
provide to the Executive, and the Executive shall accept from the Company as
full compensation for the Executive's services hereunder, compensation and
benefits as follows:
A. BASE SALARY. The Company shall pay the Executive an annualized base
salary of $200,000 ("Base Salary"). The Company shall pay the Executive's Base
Salary in accordance with the payroll practices in effect for all senior
executive officers of the Company.
B. COMPENSATION ADJUSTMENT. In consideration for the Executive's
prospective service as a member of the interim Operating Committee of the
Company through December 31, 2005, the Company make a one-time lump sum payment
of $50,000 to the Executive on March 31, 2005.
C. OTHER COMPENSATION. In recognition of the services the Executive
has performed and will perform as acting Chief Financial Officer, the Company
shall pay the Executive the aggregate amount of $100,000 over the first six
months of the Employment Term in accordance with the payroll practices in effect
for all senior executive officers of the Company, provided the Executive is
actively employed on each payment date, but subject to the provisions of Section
IV.B.
D. EXECUTIVE BENEFIT PLANS. The Executive and/or his family (to the
extent eligible), as the case may be, shall be eligible to participate on
substantially the same basis as the Company's other senior executive officers in
any executive benefit plans offered by the Company. The Company reserves the
right to modify, suspend or discontinue any and all of the plans, practices,
policies and programs at any time without recourse by the Executive, so long as
Company takes such action generally with respect to other similarly situated
senior executive officers.
E. BUSINESS EXPENSES. The Company shall promptly reimburse the
Executive for all reasonable business-related expenses incurred in the
performance of services for the Company, in accordance with the policies,
practices and procedures of the Company.
F. VACATION. The Executive shall be entitled to 20 paid vacation days
for each calendar year during the Employment Term.
IV. PAYMENTS ON TERMINATION OF EMPLOYMENT.
A. TERMINATION OF EMPLOYMENT FOR ANY REASON. The Company or the
Executive may terminate the Executive's employment for any reason at any time
prior to the end of the
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Employment Term. The following payments shall be made upon the Executive's
termination of employment for any reason and shall be the only payments provided
as a result of a termination of employment for any reason, except as set forth
in Section IV.B below:
1. Earned but unpaid Base Salary through the date of termination;
2. Any accrued but unpaid vacation;
3. Any amounts payable under any of the Company's executive
benefit plans in accordance with the terms of those plans, except as may be
required under Section 401(a)(13) of the Code; and
4. Unreimbursed business expenses incurred by the Executive on
the Company's behalf pursuant to the Company's reimbursement policy.
B. TERMINATION BY THE COMPANY WITHOUT CAUSE OR TERMINATION BY THE
EXECUTIVE FOR GOOD REASON. If, prior to the end of the Employment Term, the
Company terminates the Executive's employment without Cause or the Executive
terminates his employment for Good Reason, in addition to the payments described
in Section IV.A, the Company shall pay to the Executive the Base Salary and
payments due under Section III.C, if any, that the Company would have paid under
the Agreement had the Executive's employment continued through the end of the
Employment Term, in a lump sum within ten (10) business days of the date of
termination.
For purposes of this Agreement, "Cause" shall mean: (i) the
Executive's breach of any provision of the Agreement; (ii) the Executive's
willful and continued failure to perform his duties as an officer of the
Company; (iii) the Executive's willful misconduct, materially injurious to the
Company, monetarily or otherwise, or (iv) the Executive's commission of a
felony; in each case as determined by the Board.
For purposes of this Agreement, "Good Reason" shall mean (i)
assigning duties to the Executive that are inconsistent with those of an officer
of the Company; (ii) requiring the Executive, without his consent, primarily to
perform his services from a location more than 35 miles from the Company's
present offices in Tampa, Florida; or (iii) failure to make the payments
required under Section III of the Agreement. Notwithstanding the above, the
actions described above shall not constitute Good Reason until after the Company
shall have been provided thirty (30) days prior written notice of such action
and shall have failed to remedy such action during such thirty (30) day period.
V. RESTRICTIVE COVENANTS.
A. DEFINITIONS. For purposes of this Agreement, the following terms
shall be defined as follows:
1. "Confidential Information" shall mean the Company's trade
secrets and all other information unique to the Company and not readily
available to the public, including developments, designs, improvements,
inventions, formulas, compilations, methods, forecasts, software programs,
processes, know-how, data, research, operating methods and techniques, and
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all business plans, strategies, costs, profits, customers, vendors, markets,
sales, products, key personnel, pricing policies, marketing, sales or other
financial or business information, and any modifications or enhancements of any
of the foregoing.
2. The term "Business Conducted by the Company" shall mean the
glass container manufacturing business conducted by the Company as of the date
of the Executive's termination of employment.
B. INVENTIONS OR DEVELOPMENTS. The Executive agrees that he shall
promptly and fully disclose to the Company all discoveries, improvements,
inventions, formulas, ideas, processes, designs, techniques, know-how, data and
computer programs (whether or not patentable, copyrightable or susceptible to
any other form of protection), made, conceived, reduced to practice or developed
by the Executive, either alone or jointly with others, during his employment
with the Company (collectively, the "Inventions or Developments"). All
Inventions and Developments shall be the sole property of the Company, including
all patents, copyrights, intellectual property or other rights related thereto
and the Executive assigns to the Company all rights (if any) that the Executive
may have or acquire in such Inventions or Developments.
Notwithstanding the foregoing, any right of the Company or assignment by
the Executive as provided in this paragraph shall not apply to any Inventions or
Developments for which no equipment, supplies, facility or trade secret
information of the Company were used and which were developed entirely on the
Executive's own time, unless: (a) the Inventions or Developments relate to the
Business Conducted by the Company or the actual or demonstrably anticipated
research or development of the Company; or (b) the Inventions or Developments
result from any work performed by the Executive for the Company.
C. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OR INVENTIONS OR
DEVELOPMENTS. The Executive acknowledges that he has had and shall have access
to Confidential Information or Inventions or Developments of the Company.
Accordingly, the Executive agrees that, without the prior written consent of the
Company, he shall not, at any time, either during or after the Employment Term,
disclose to any unauthorized person or otherwise use any such Confidential
Information or Inventions or Developments for any reason other than the
Company's or any of their subsidiaries' or affiliates' business.
D. NO DIVERSION OF BUSINESS OPPORTUNITIES AND PROSPECTS. The Executive
agrees that during his employment with the Company: (a) the Executive shall not
directly or indirectly engage in any employment, consulting or other business
activity that is competitive with the Business Conducted by the Company; (b) the
Executive shall promptly disclose to the Company all business opportunities that
are presented to the Executive in his capacity as an employee of the Company or
which is of a similar nature to the Business Conducted by the Company or which
the Company has expressed an interest in engaging in the future; and (c) the
Executive shall not usurp or take advantage of any such business opportunity
without first offering such opportunity to the Company.
E. ACTIONS UPON TERMINATION. Upon the Executive's employment
termination for any reason, the Executive shall neither take or copy nor allow a
third party to take or copy, and shall deliver to the Company all property of
the Company, including, but not limited to, all
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Confidential Information or Inventions or Developments, regardless of the medium
(I.E., hard copy, computer disk, CD ROM) on which the information is contained.
F. NON-COMPETITION. The Executive agrees that during the Employment
Term, for the period that the Executive receives payments pursuant to Section
IV.B and for one (1) year after a termination by the Company with Cause (the
"Period"), he shall not, without the prior written consent of the Company,
participate or engage in, directly or indirectly (as an owner, partner,
employee, officer, director, independent contractor, consultant, advisor or in
any other capacity calling for the rendition of services, advice, or acts of
management, operation or control), any business that is competitive with the
glass container manufacturing business conducted by the Company within the
United States.
G. NON-SOLICITATION. During the Period, the Executive shall not,
without the prior written consent of the Company, directly or indirectly, for
the Executive's own account or for the account of any other person or entity
with which the Executive is or will become associated in any capacity, (i)
solicit for employment or (ii) solicit to interfere with the business of the
Company, any officer, employee, agent, consultant, or independent contractor of
the Company, or any person who was an officer, employee, agent, consultant, or
independent contractor of the Company within six (6) months of such
solicitation.
H. IRREPARABLE HARM. The Executive acknowledges that: (a) the
Executive's compliance with this Article V is necessary to preserve and protect
the Confidential Information, Inventions or Developments and the goodwill of the
Company as a going concern; (b) any failure by the Executive to comply with the
provisions of this Section will result in irreparable and continuing injury for
which there will be no adequate remedy at law; and (c) in the event that the
Executive should fail to comply with the terms and conditions of this Article V,
the Company shall be entitled, in addition to such other relief as may be
proper, to all types of equitable relief (including, but not limited to, the
issuance of an injunction and/or temporary restraining order) as may be
necessary to cause the Executive to comply with this Section, to restore to the
Company its property, and to make the Company whole.
I. SURVIVAL. The provisions set forth in this Article V shall, as
noted, survive termination of this Agreement.
J. FORFEITURE. If the Executive violates any provision of this Article
V, the Executive shall forfeit his right to all payments and benefits under
Article IV, except to the extent otherwise provided by law.
K. UNENFORCEABILITY. If any provision(s) of this Article V shall be
found invalid or unenforceable, in whole or in part, then such provision(s)
shall be deemed to be modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement, as the case may require, and this Agreement shall be
construed and enforced to the maximum extent permitted by law, as if such
provision(s) had been originally incorporated herein as so modified or
restricted, or as if such provision(s) had not been originally incorporated
herein, as the case may be.
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VI. MISCELLANEOUS.
A. ASSIGNMENT; SUCCESSORS. This Agreement shall inure to the benefit
of and be binding upon the Company and its successors. The Company may not
assign this Agreement without the Executive's written consent, except that the
Company's obligations under this Agreement shall be the binding legal
obligations of any successor to the Company by sale, and in the event of any
transaction that results in the transfer of substantially all of the assets or
business of the Company, the Company shall cause the transferee to assume the
obligations of the Company under this Agreement. Upon the Executive's death this
Agreement shall inure to the benefit of the Executive's heirs, legatees and
legal representatives of the Executive's estate.
B. INTERPRETATION. The laws of the State of Florida shall govern the
validity, interpretation, construction and performance of this Agreement,
without regard to the conflict of laws principles thereof.
C. WITHHOLDING. The Company may withhold from any payment that it is
required to make under this Agreement amounts sufficient to satisfy applicable
withholding requirements under any federal, state or local law.
D. AMENDMENT OR TERMINATION. This Agreement may be amended at any time
by written agreement between the Company and the Executive.
E. NOTICES. Notices given pursuant to this Agreement shall be in
writing and shall be deemed received when personally delivered, or on the date
of written confirmation of receipt by (a) overnight carrier, (b) telecopy, (c)
registered or certified mail, return receipt requested, addressee only, postage
prepaid, or (d) such other method of delivery that provides a written
confirmation of delivery. Notice shall be directed to:
If to the Company, to: Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Chairman of the Board
Fax number: [000-000-0000]
And a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax number: 000 000-0000
If to the Executive, to his home address set forth in the records of the
Company
The Company may change the person and/or address to whom the Executive must give
notice under this Section by giving the Executive written notice of such change,
in accordance with the procedures described above. Notices to or with respect to
the Executive shall be directed to the
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Executive, or to the Executive's executors, personal representatives or
distributees, if the Executive is deceased, or the assignees of the Executive,
at the Executive's home address on the records of the Company.
F. SEVERABILITY. If any provision(s) of this Agreement shall be found
invalid or unenforceable by a court of competent jurisdiction, in whole or in
part, then it is the parties' mutual desire that such court modify such
provision(s) to the extent and in the manner necessary to render the same valid
and enforceable, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision(s) had been originally
incorporated herein as so modified or restricted, or as if such provision(s) had
not been originally incorporated herein, as the case may be.
G. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the Company and the Executive and supersedes all prior
agreements and understandings, written or oral, relating to the subject matter
hereof.
H. WAIVER; RELEASE OF CLAIMS. No failure or delay by the Company or
the Executive in enforcing or exercising any right or remedy hereunder shall
operate as a waiver thereof. No modification, amendment or waiver of this
Agreement nor consent to any departure by the Executive from any of the terms or
conditions thereof, shall be effective unless in writing and signed by the
Chairman of the Board. Any such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
I. REPRESENTATIONS BY EXECUTIVE. Executive represents and warrants
that by accepting employment with the Company under this Agreement, he is not
(a) breaching any other agreement with any third party, including but not
limited to any former employer, or (b) in any other way restricted in or limited
from fulfilling the terms of this Agreement.
J. SURVIVAL. All sections of this Agreement survive beyond the
Employment Term except as otherwise specifically stated.
K. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
L. COUNTERPARTS. The parties may execute this Agreement in one or more
counterparts, all of which together shall constitute but one Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
ANCHOR GLASS CONTAINER CORPORATION EXECUTIVE
By: /S/ XXXXXXX X. XXXXXXX /S/ XXXXX X. XXXX
-------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxx
Title:V.P., Gen'l. Csl. & Secy.
