Exhibit 10.20
EMPLOYEE AGREEMENT
THIS EMPLOYEE AGREEMENT (this "Agreement") made and entered into this
4th day of October, 2000, by and between Xxxxx Xxxx (the "Employee") and United
States Can Company, a Delaware corporation (the "Employer") having its principal
offices at 000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000.
WITNESSETH THAT
WHEREAS, the Employee is entrusted with knowledge of the Employer's and
Affiliates' particular business methods and is trained and instructed in the
Employer's and Affiliates' particular operations methods;
WHEREAS, the Employee is entrusted with one or more of the following:
manufacturing technology; operating procedures; purchasing information; cost
data; price data; and customer-specific information and data; and
WHEREAS, entering into this Agreement is a condition of receiving an
option to purchase shares of stock of U.S. Can Corporation.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. RESTRICTIVE COVENANTS. During the term of employment and for a
period of 24 months, or for a period of time equal to the length of the
Employee's tenure with the Employer (if such tenure is less than 24 months),
after the employment relationship has been terminated for any reason, the
Employee will not: (a) directly or indirectly on behalf of any other individual
or entity, solicit or provide any services also provided by the Employer or any
Affiliate to any individual or entity who is then or was at any time a client of
the Employer and for whose account the Employee was responsible, in whole or in
any part, at any time during the Employee's tenure with the Employer and the
Affiliates or (b) directly or indirectly, own, manage, operate, control, be
employed by, participate in, or be connected in any manner with the ownership,
management, operation or control of any business of the type and character in
which the Employee was engaged on behalf of the Employer or any Affiliate which
operates in the United States or Canada. At all times during and after
employment with the Employer, the Employee will not use or disclose any trade
secret of the Employer or any Affiliate or any proprietary or confidential
information or data of the Employer or any Affiliate, including, without
limitation, the Employer's or Affiliate's manufacturing technology, cost data,
price data, customer lists, customer information and the other matters specified
in paragraph 2 for the Employee's personal benefit, directly or indirectly, or
in any way which could be detrimental to the Employer or any Affiliate. For
purposes of this Agreement, the term "Affiliate" shall mean the Employer and any
of its "affiliates" as that term is defined in the Securities Exchange Act of
1934 as amended.
2. EMPLOYER'S INFORMATION. The Employer and the Affiliates are in the
business of container manufacturing and related businesses including, without
limitation, aerosol containers;
paint, plastic and general line containers; and custom and specialty products.
The Employee acknowledges that: (i) the Employer's and Affiliates' manufacturing
technology is highly evolved; (ii) the Employer's and Affiliates' purchasing
practices and cost data are not generally known in the packaging industry; (iii)
the Employer and the Affiliates have a proprietary interest in the identity of
their customers and their customer lists and in their efforts to identify
potential customers; and (iv) documents and information regarding the Employer's
and the Affiliates' manufacturing methods, sales, pricing, costs and the
requirements of the Employer's and the Affiliates' customers are confidential
and constitute trade secrets.
3. RESTRICTION ACKNOWLEDGMENT. The Employee further acknowledges that:
(1) in the event the Employee's employment with the Employer terminates for any
reason, the Employee will be able to earn a livelihood without violating the
restrictive covenants contained in this Agreement; and (2) the Employee's
ability to earn a livelihood without violating such covenants is a material
condition to the Employee's receipt of an option to purchase shares of stock of
U.S. Can Corporation.
4. OTHER AGREEMENTS. It is expressly understood and agreed that no
change, at any time, in compensation which may be given to the Employee and no
change, at any time, in the nature of services to be performed by the Employee,
shall amend, impair or otherwise affect any of this Agreement's terms or
provisions. This Agreement may be amended only by a written document signed by
the parties.
5. WAIVER. Any failure of the Employer to demand rigid adherence to one
or more of this Agreement's terms on one or more occasions, shall not be
construed as a waiver nor deprive the Employer of the right to insist upon
strict compliance.
6. SEVERABILITY. If any one or more of the provisions of this Agreement
should be ruled wholly or partially invalid or unenforceable by an arbitrator in
accordance with the procedures set forth in paragraph 15 or a court of competent
jurisdiction, then (i) the validity and enforceability of all provisions of this
Agreement not ruled to be invalid or unenforceable shall be unaffected, and (ii)
the provision(s) held wholly or partially invalid or unenforceable shall be
deemed amended and such court is authorized to reform the provision(s), to the
minimum extent necessary to render them valid and enforceable in conformity with
the parties' intent as manifested herein.
7. REMEDIES. If the Employee shall violate or attempt to violate any of
the restrictive covenants contained in this Agreement, then the Employer or the
affected Affiliate shall be entitled, as of right, to an injunction and/or other
equitable relief against the Employee, restraining the Employee from violating
or attempting to violate any of said covenants.
8. SURVIVAL. Notwithstanding any employment termination, this Agreement
shall remain a valid and enforceable contract between the parties, including
(without limitation) this Agreement's restrictive covenants.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Employer and its Affiliates and the Employee and
their respective successors and assigns.
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10. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois, without regard to its
conflicts of law principles.
11. WARRANTY/AGREEMENT. Unless previously disclosed to the Employer in
writing, the Employee represents and warrants to the Employer that the Employee
is not a party to any agreement (other than an agreement with an Employer or an
Affiliate) which contains a covenant-not-to-compete or other restriction with
respect to: (i) the nature of any services or business which the Employee is
entitled to perform or conduct for Employer or its Affiliate; or (ii) the
disclosure or use of any information which directly or indirectly relates to the
nature of the business of the Employer and Affiliates or the services to be
rendered by the Employee for Employer or its Affiliate. THE EMPLOYEE AGREES NOT
TO USE OR DISCLOSE ANY CONFIDENTIAL OR PROPRIETARY INFORMATION OR DATA OF ANY
FORMER EMPLOYER OR OTHER THIRD PARTY IN CONNECTION WITH THE EMPLOYEE'S
EMPLOYMENT BY THE EMPLOYER.
12. WORK-FOR-HIRE PROVISION. "Inventions" mean all systems, procedures,
techniques, manuals, data bases, plans, lists, inventions, trade secrets,
copyrights, patents, trademarks, discoveries, innovations, concepts, ideas and
software conceived, compiled or developed by the Employee in the course of
employment with the Employer and/or comprised, in whole or part, of the
Employer's and the Affiliates' confidential information. Notwithstanding the
foregoing, Inventions shall not include (a) any inventions independently
developed by the Employee and not derived, in whole or part, from any Employer
or Affiliate's confidential information, or (b) any invention made by the
Employee prior to the Employee's exposure to any confidential information. The
parties acknowledge and agree that all work performed by the Employee hereunder
shall be deemed "work for hire." The Employer shall at all times own and have
exclusive right, title and interest in and to all Employer and the Affiliates'
confidential information and Inventions, and the Employer shall retain the
exclusive right to license, sell, transfer and otherwise use and dispose of the
same. Any and all enhancements of the Employer's and the Affiliates'
manufacturing technology developed by the Employee shall be the exclusive
property of the Employer. The employee hereby assigns to the Employer the
Employee's sole and exclusive right, title and interest in and to all
Inventions, without additional consideration of any kind whatsoever from the
Employer or the Affiliates. The Employee agrees to execute and deliver any
instruments or documents and to do all other things (including, without
limitation, the giving of testimony) requested by the Employer (both during and
after the Employee's employment by the Employer) in order to vest more fully in
the Employer or the Affiliates all ownership rights in the Inventions
(including, without limitation, obtaining patent, copyright to trademark
protection therefor in the U.S. and/or foreign countries).
13. RETURN OF INFORMATION. Following the Employee's termination of
employment with the Employer and the Affiliates, the Employee agrees to return
to the Employer and the Affiliates any keys, credit cards, passes, confidential
documents or material, or other property belonging to the Employer or the
Affiliates, and to return all writing, files, records, correspondence,
notebooks, notes and other documents and things (including any copies thereof)
containing any trade secrets relating to the Employer and the 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.
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14. NOTICES. Notices and all other communications provided for in this
Agreement shall be in writing and shall be (i) delivered personally, (ii) sent
by certified mail, postage prepaid (provided that international mail shall be
sent via overnight or two-day delivery), (iii) sent by facsimile (provided that
transmission by facsimile shall be effective only if accompanied by depositing a
hard copy for delivery to the address specified below, postage prepaid (in the
case of mailing in the U.S., by U.S. mail, and in the case of mailing outside
the U.S. by mailing via overnight or two-day delivery)), or (iv) sent by prepaid
overnight courier to the parties at the addresses set forth below (or such other
addresses as shall be specified by the parties like notice). Such notices,
demands, claims and other communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed next
day delivery, the next day or the day designated by delivery;
(b) in the case of certified or registered U.S. mail, five days after
deposit in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting
party received confirmation of transmission and deposited a hard copy of such
notice in the mail.
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:
to the Employer by mail:
United States Can Company
000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
to the Employer by facsimile:
630/572-0822
To Employee:
at the address of the Employee as set forth in the payroll records at
the Employer.
15. 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
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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. This paragraph 15 shall not be construed
to limit the Employer's or an Affiliate's right to obtain relief under paragraph
7 with respect to any matter or controversy subject to paragraph 7, and the
Employer shall be entitled to obtain any such relief by direct application to
state, federal, or other applicable court, without being required to first
arbitrate such matter or controversy.
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16. IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed on the day and year first above written.
UNITED STATES CAN COMPANY
By /s/ Xxxx X. Xxxxxxx
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Its:
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EMPLOYEE
/s/ Xxxxx Xxxx
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