UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) December 13, 2015

 

 

Jarden Corporation

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-13665   35-1828377

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

1800 North Military Trail, Boca Raton, Florida   33431
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code (561) 447-2520

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

  x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

Item 5.02 below is incorporated by reference in its entirety into this Item 1.01.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Employment Agreement Schedule Updates

In connection with the automatic extension of the employment periods of Martin E. Franklin, the Executive Chairman of Jarden Corporation, a Delaware corporation (the “ Company ”), Ian G.H. Ashken, the Vice Chairman and President of the Company, and James E. Lillie, the Chief Executive Officer of the Company, pursuant to the terms of their respective existing amended and restated employment agreements, each as amended, the Company, as of December 13, 2015, entered into technical amendments to the schedules to the employment agreements (the “ Schedule Amendments ”) for each of Messrs. Franklin, Ashken and Lillie solely to update the respective schedules of annual restricted stock grants with the Company extending such schedules through December 31, 2018. The grants will be subject to the terms of Messrs. Franklin’s, Ashken’s and Lillie’s respective employment agreements and the individual restricted stock award agreements to be entered into by and between the Company and each of them. The Schedule Amendments were approved by the Company’s Board of Directors upon the recommendation of the Company’s Compensation Committee. The foregoing summary description is qualified in its entirety by reference to the full texts of the Schedule Amendments for each of Messrs. Franklin, Ashken and Lillie, which are attached hereto as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3, respectively, and incorporated by reference herein.

Departure of Certain Officers; Separation Agreements

As previously announced, on December 13, 2015, the Company, Newell Rubbermaid Inc., a Delaware corporation (“ Newell ”), NCPF Acquisition Corp. I, a Delaware corporation and a wholly-owned subsidiary of Newell, and NCPF Acquisition Corp. II, a Delaware corporation and a wholly-owned subsidiary of Newell, entered into an Agreement and Plan of Merger (the “ Merger Agreement ”), pursuant to which Newell will combine with Jarden in a series of merger transactions (the “ Combination ”).

In connection with the Merger Agreement, the Company entered into separation agreements with each of Mr. Franklin (the “ Franklin Separation Agreement ”), Mr. Ashken (the “ Ashken Separation Agreement ”), and Mr. Lillie (the “ Lillie Separation Agreement ” and, collectively with the Franklin Separation Agreement and the Ashken Separation Agreement, the “ Separation Agreements ”). The Separation Agreements were approved by the Company’s Board of Directors upon the recommendation of the Company’s Compensation Committee.

Pursuant to each of the Separation Agreements, each of Messrs. Franklin, Ashken and Lillie will continue his employment with the Company in his current capacity until the date on which the Combination is consummated pursuant to the Merger Agreement (the “ Separation Date ”). On the Separation Date, each of Messrs. Franklin’s, Ashken’s and Lillie’s employment


with the Company will terminate and such termination will be treated as a “Termination Without Cause” in connection with a “Change of Control of the Company” under their respective amended and restated employment agreements, each as amended, with the Company.

As a condition to receiving the separation payments and benefits described in the Separation Agreements, each of Messrs. Franklin, Ashken and Lillie will be required to execute a release and waiver of claims in favor of the Company, and has agreed to extend the duration of the noncompetition covenants contained in their respective employment agreements from two years to four years following the Separation Date. The foregoing summary description is qualified in its entirety by reference to the full texts of the Franklin Separation Agreement, the Ashken Separation Agreement and the Lillie Separation Agreement, which are attached hereto as Exhibit 10.4, Exhibit 10.5 and Exhibit 10.6, respectively, and incorporated by reference herein.

Caution Concerning Forward Looking Statements

Statements that are not historical in nature constitute forward looking statements. These forward-looking statements relate to information or assumptions about the timing of completion of the proposed acquisition, the expected benefits of the proposed acquisition, management’s plans, projections and objectives for future operations, scale and performance, integration plans and expected synergies therefrom, and anticipated future financial and operating performance results, including operating margin or gross margin capital and other expenditures, cash flow, dividends, restructuring and other project costs, costs and cost savings, and debt ratings. These statements are accompanied by words such as “anticipate,” “expect,” “project,” “will,” “believe,” “estimate” and similar expressions. Such expectations are based upon certain preliminary information, internal estimates, and management assumptions, expectations, and plans, and are subject to a number of risks and uncertainties inherent in projecting future conditions, events, and results. Actual results could differ materially from those expressed or implied in the forward-looking statements if one or more of the underlying assumptions or expectations prove to be inaccurate or are unrealized. Important factors that could cause actual results to differ materially from those suggested by the forward-looking statements include, but are not limited to, the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement; the risk that the necessary shareholder approvals may not be obtained; the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated; the risk that the proposed acquisition will not be consummated in a timely manner; risks that any of the closing conditions to the proposed acquisition may not be satisfied or may not be satisfied in a timely manner; risks related to disruption of management time from ongoing business operations due to the proposed acquisition; failure to realize the benefits expected from the proposed acquisition; failure to promptly and effectively integrate the acquisition; and the effect of the announcement of the proposed acquisition on the ability of Jarden to retain customers and retain and hire key personnel, maintain relationships with suppliers, on Jarden’s operating results and businesses generally and those factors listed in Jarden’s most recently filed Quarterly Report on Form 10-Q and Exhibit 99.1 thereto and Jarden’s most recent Annual Report on Form 10-K for the year ended December 31, 2014, in each case, filed with the Securities and Exchange Commission (“SEC”). Changes in such assumptions or factors could produce significantly different results. The information contained in this Current Report on Form 8-K is as of the date hereof. Jarden assumes no obligation to update any forward-looking statements contained in this Current Report on Form 8-K as a result of new information or future events or developments.


Additional Information and Where to Find It

In connection with the proposed acquisition, Newell Rubbermaid and Jarden will file a registration statement on Form S-4 that will include the Joint Proxy Statement of Newell Rubbermaid and Jarden that also constitutes a prospectus of Newell Rubbermaid. Newell Rubbermaid and Jarden plan to mail to their respective shareholders the Joint Proxy Statement/Prospectus in connection with the acquisition. THE COMPANY URGES INVESTORS AND SHAREHOLDERS TO READ THE JOINT PROXY STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT DOCUMENTS WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT NEWELL RUBBERMAID, JARDEN, AND THE PROPOSED ACQUISITION. Investors and shareholders will be able to obtain copies of the Joint Proxy Statement/Prospectus and other documents filed with the SEC by Newell Rubbermaid and Jarden free of charge at the SEC’s website, www.sec.gov. In addition, investors and shareholders will be able to obtain free copies of the Joint Proxy Statement/Prospectus and other documents filed with the SEC by Newell Rubbermaid by accessing Newell Rubbermaid’s website at www.newellrubbermaid.com by clicking on the “Investor Relations” link and then clicking on the “SEC Filings” link or by contacting Newell Rubbermaid Investor Relations at investor.relations@newellrubbermaid.com or by calling 1-800-424-1941, and will be able to obtain free copies of the Joint Proxy Statement/Prospectus and other documents filed with the SEC by Jarden by accessing Jarden’s website at www.Jarden.com by clicking on the “For Investors” link and then clicking on the “SEC Filings” link or by contacting Jarden Investor Relations at rwilson@jarden.com or by calling 203-845-5300. Shareholders may also read and copy any reports, statements and other information filed by Newell Rubbermaid or Jarden with the SEC, at the SEC public reference room at 100 F Street, N.E., Washington D.C. 20549. Please call the SEC at 1-800-SEC-0330 or visit the SEC’s website for further information on its public reference room.

Participants in the Merger Solicitation

Newell Rubbermaid, Jarden and certain of their respective directors, executive officers and other persons may be considered participants in the solicitation of proxies from the respective shareholders of Newell Rubbermaid and Jarden in respect of the proposed acquisition contemplated by the Joint Proxy Statement/Prospectus. Information regarding Newell Rubbermaid’s directors and executive officers is available in Newell Rubbermaid’s Form 10-K filed with the SEC on March 2, 2015, its proxy statement filed with the SEC on April 1, 2015 in connection with its 2015 annual meeting of stockholders and its Forms 8-K filed with the SEC on February 12, 2015, May 19, 2015, October 9, 2015 and November 16, 2015. Information regarding Jarden’s directors and executive officers is available in Jarden’s Form 10-K filed with the SEC on March 2, 2015, its proxy statement filed with the SEC on April 20, 2015 in connection with its 2015 annual meeting of stockholders and its Forms 8-K filed with the SEC on January 5, 2015 and June 9, 2015. Other information regarding persons who may be considered participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the Joint Proxy Statement/Prospectus and other relevant materials to be filed with the SEC when they become available.


Non-Solicitation

This communication is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote or approval in any jurisdiction pursuant to the acquisition or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Number

  

Exhibit

10.1    Amendment Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Martin E. Franklin
10.2    Amendment Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Ian G.H. Ashken
10.3    Amendment Agreement, dated as of December 13, 2015, by and between Jarden Corporation and James E. Lillie
10.4    Separation Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Martin E. Franklin
10.5    Separation Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Ian G.H. Ashken
10.6    Separation Agreement, dated as of December 13, 2015, by and between Jarden Corporation and James E. Lillie


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: December 17, 2015

 

JARDEN CORPORATION
By:  

/s/ John E. Capps

Name:   John E. Capps
Title:   Executive Vice President - Administration, General Counsel and Secretary


Exhibit Index

 

Number

  

Exhibit

10.1    Amendment Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Martin E. Franklin
10.2    Amendment Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Ian G.H. Ashken
10.3    Amendment Agreement, dated as of December 13, 2015, by and between Jarden Corporation and James E. Lillie
10.4    Separation Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Martin E. Franklin
10.5    Separation Agreement, dated as of December 13, 2015, by and between Jarden Corporation and Ian G.H. Ashken
10.6    Separation Agreement, dated as of December 13, 2015, by and between Jarden Corporation and James E. Lillie

Exhibit 10.1

Jarden Corporation

Amendment Agreement

This Amendment Agreement, dated as of December 13, 2015 (the “ Amendment ”), is entered into by and between Jarden Corporation, a Delaware corporation (the “ Company ”), and Martin E. Franklin (the “ Executive ”).

WITNESSETH:

WHEREAS, the Company and the Executive are parties to that certain Fifth Amended and Restated Employment Agreement, dated as of July 23, 2012, as amended by that certain Equity Award, Lock-Up and Amendment Agreement, dated as of December 19, 2013, between the Company and Executive (as amended, the “ Employment Agreement ”);

WHEREAS, the Employment Period has previously been automatically extended through December 31, 2018 pursuant to the terms of the Employment Agreement;

WHEREAS, in connection with such extension of the Employment Period, the Company’s Board of Directors and its Compensation Committee, after consulting with independent compensation consultants and such other advisors as they considered appropriate, have determined the Restricted Stock grant issuable to Executive in 2018 pursuant to the Employment Agreement; and

WHEREAS, the parties desire to enter into this Amendment to amend the Employment Agreement to replace the current Schedule I thereto with a revised Schedule I giving effect to the 2018 Restricted Stock grant amount.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Amendment, the Company and the Executive hereby agree as follows:

1. Defined Terms . Capitalized terms used herein without definition shall have the respective meanings given such terms in the Employment Agreement.

2. Amendment of Employment Agreement . The Employment Agreement is hereby amended by replacing “Schedule I” thereto in its entirety with the revised “Schedule I” set forth on Exhibit A hereto effective as of the date hereof.

3. No Other Changes . There are no other changes to the Employment Agreement except as set forth in this Amendment and, as modified by this Amendment, the Employment Agreement is hereby ratified, approved and confirmed in all respects, and shall remain in full force and effect.

4. Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, applicable to agreements made and to be performed entirely within such state, other than conflict of laws principles thereof directing the application of any law other than that of Delaware.

 

1


5. Counterparts . This Amendment may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[ Remainder of Page Intentionally Blank; Signature Page Follows ]


IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by a duly authorized officer and the Executive has executed this Amendment as of the date first written above.

 

  JARDEN CORPORATION
By:   /s/ John E. Capps
  Name: John E. Capps
 

Title: Executive Vice President -

Administration, General Counsel and Secretary

  EXECUTIVE
  /s/ Martin E. Franklin
  Name: Martin E. Franklin


Exhibit A

SCHEDULE I

(Second Revised Schedule I to Fifth Amended and Restated Employment Agreement dated as of July 23, 2012, as amended, by and between Jarden Corporation and Martin E. Franklin)

On January 1 of each year during the Employment Period (or, if any such date is not a business day, on the next succeeding business day), provided Executive is employed on such date, Executive shall be entitled to receive an annual performance grant of shares of Restricted Stock as set forth in the table below. The restrictions on the Restricted Shares shall lapse based on achievement of a performance target equal to a target appreciation in the stock price of the common stock of the Company set by the Compensation Committee at the time of grant, but not to exceed a maximum appreciation percentage performance target according to the following table:

 

Grant (# of shares) 1

  Date   Maximum Stock Price Appreciation (%)
Performance Target (over Closing Price
on Last Trading Day of  Prior Year)
394,737   January 1, 2016   12%
375,000   January 1, 2017   12%
368,421   January 1, 2018   12%

In the event the Employment Period extends past December 31, 2018, in each additional year of the Employment Period beginning after December 31, 2018, the Executive shall be entitled to a grant of Restricted Stock in an amount to be determined each year by the Compensation Committee, with vesting determined in accordance with the performance targets set forth above, or such other methodology as the Executive and the Compensation Committee may mutually agree.

The performance target for vesting each of the annual grants listed above shall be achieved on the date that the average closing price of the Company’s common stock on the New York Stock Exchange (or such other securities exchange on which the Company’s common stock may then be traded) for any period of five consecutive trading days equals or exceeds a price representing an increase over the closing price on the last trading day of the prior calendar year at least equal to the target stock price appreciation percentage set by the Compensation Committee (up to the maximum set forth above). The performance target must be achieved, if at all, within five (5) years from the date of grant. If the performance target in not achieved within five (5) years from the date of grant, such grant will expire and be forfeited.

Capitalized terms used but not defined on this Schedule I shall have the meanings assigned thereto in the Fifth Amended and Restated Employment Agreement dated as of July 23, 2012, by and between Jarden Corporation and Martin E. Franklin, as amended, of which this Schedule I forms a part.

 

1   Gives effect to the three-for-two stock split of the Company’s common stock effected on November 24, 2014.

Exhibit 10.2

Jarden Corporation

Amendment Agreement

This Amendment Agreement, dated as of December 13, 2015 (the “ Amendment ”), is entered into by and between Jarden Corporation, a Delaware corporation (the “ Company ”), and Ian G.H. Ashken (the “ Executive ”).

WITNESSETH:

WHEREAS, the Company and the Executive are parties to that certain Fifth Amended and Restated Employment Agreement, dated as of July 23, 2012, as amended by that certain Equity Award, Lock-Up and Amendment Agreement, dated as of December 19, 2013, between the Company and Executive (as amended, the “ Employment Agreement ”);

WHEREAS, the Employment Period has previously been automatically extended through December 31, 2018 pursuant to the terms of the Employment Agreement;

WHEREAS, in connection with such extension of the Employment Period, the Company’s Board of Directors and its Compensation Committee, after consulting with independent compensation consultants and such other advisors as they considered appropriate, have determined the Restricted Stock grant issuable to Executive in 2018 pursuant to the Employment Agreement; and

WHEREAS, the parties desire to enter into this Amendment to amend the Employment Agreement to replace the current Schedule I thereto with a revised Schedule I giving effect to the 2018 Restricted Stock grant amount.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Amendment, the Company and the Executive hereby agree as follows:

1. Defined Terms . Capitalized terms used herein without definition shall have the respective meanings given such terms in the Employment Agreement.

2. Amendment of Employment Agreement . The Employment Agreement is hereby amended by replacing “Schedule I” thereto in its entirety with the revised “Schedule I” set forth on Exhibit A hereto effective as of the date hereof.

3. No Other Changes . There are no other changes to the Employment Agreement except as set forth in this Amendment and, as modified by this Amendment, the Employment Agreement is hereby ratified, approved and confirmed in all respects, and shall remain in full force and effect.

4. Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, applicable to agreements made and to be performed entirely within such state, other than conflict of laws principles thereof directing the application of any law other than that of Delaware.

 

1


5. Counterparts . This Amendment may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[ Remainder of Page Intentionally Blank; Signature Page Follows ]


IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by a duly authorized officer and the Executive has executed this Amendment as of the date first written above.

 

  JARDEN CORPORATION
By:   /s/ John E. Capps
  Name: John E. Capps
 

Title: Executive Vice President -

Administration, General Counsel and Secretary

  EXECUTIVE
  /s/ Ian G.H. Ashken
  Name: Ian G.H. Ashken


Exhibit A

SCHEDULE I

(Second Revised Schedule I to Fifth Amended and Restated Employment Agreement dated as of July 23, 2012, as amended, by and between Jarden Corporation and Ian G.H. Ashken)

On January 1 of each year during the Employment Period (or, if any such date is not a business day, on the next succeeding business day), provided Executive is employed on such date, Executive shall be entitled to receive an annual performance grant of shares of Restricted Stock as set forth in the table below. The restrictions on the Restricted Shares shall lapse based on achievement of a performance target equal to a target appreciation in the stock price of the common stock of the Company set by the Compensation Committee at the time of grant, but not to exceed a maximum appreciation percentage performance target according to the following table:

 

Grant (# of shares) 1

  Date   Maximum Stock Price Appreciation (%)
Performance Target (over Closing Price
on Last Trading Day of  Prior Year)
177,632   January 1, 2016   12%
168,750   January 1, 2017   12%
165,690   January 1, 2018   12%

In the event the Employment Period extends past December 31, 2018, in each additional year of the Employment Period beginning after December 31, 2018, the Executive shall be entitled to a grant of Restricted Stock in an amount to be determined each year by the Compensation Committee, with vesting determined in accordance with the performance targets set forth above, or such other methodology as the Executive and the Compensation Committee may mutually agree.

The performance target for vesting each of the annual grants listed above shall be achieved on the date that the average closing price of the Company’s common stock on the New York Stock Exchange (or such other securities exchange on which the Company’s common stock may then be traded) for any period of five consecutive trading days equals or exceeds a price representing an increase over the closing price on the last trading day of the prior calendar year at least equal to the target stock price appreciation percentage set by the Compensation Committee (up to the maximum set forth above). The performance target must be achieved, if at all, within five (5) years from the date of grant. If the performance target in not achieved within five (5) years from the date of grant, such grant will expire and be forfeited.

Capitalized terms used but not defined on this Schedule I shall have the meanings assigned thereto in the Fifth Amended and Restated Employment Agreement dated as of July 23, 2012, by and between Jarden Corporation and Ian G.H. Ashken, as amended, of which this Schedule I forms a part.

 

1   Gives effect to the three-for-two stock split of the Company’s common stock effected on November 24, 2014.

Exhibit 10.3

Jarden Corporation

Amendment Agreement

This Amendment Agreement, dated as of December 13, 2015 (the “ Amendment ”), is entered into by and between Jarden Corporation, a Delaware corporation (the “ Company ”), and James E. Lillie (the “ Executive ”).

WITNESSETH:

WHEREAS, the Company and the Executive are parties to that certain Fourth Amended and Restated Employment Agreement, dated as of July 23, 2012, as amended by that certain Equity Award, Lock-Up and Amendment Agreement, dated as of December 19, 2013, between the Company and Executive (as amended, the “ Employment Agreement ”);

WHEREAS, the Employment Period has previously been automatically extended through December 31, 2018 pursuant to the terms of the Employment Agreement;

WHEREAS, in connection with such extension of the Employment Period, the Company’s Board of Directors and its Compensation Committee, after consulting with independent compensation consultants and such other advisors as they considered appropriate, have determined the Restricted Stock grant issuable to Executive in 2018 pursuant to the Employment Agreement; and

WHEREAS, the parties desire to enter into this Amendment to amend the Employment Agreement to replace the current Schedule I thereto with a revised Schedule I giving effect to the 2018 Restricted Stock grant amount.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Amendment, the Company and the Executive hereby agree as follows:

1. Defined Terms . Capitalized terms used herein without definition shall have the respective meanings given such terms in the Employment Agreement.

2. Amendment of Employment Agreement . The Employment Agreement is hereby amended by replacing “Schedule I” thereto in its entirety with the revised “Schedule I” set forth on Exhibit A hereto effective as of the date hereof.

3. No Other Changes . There are no other changes to the Employment Agreement except as set forth in this Amendment and, as modified by this Amendment, the Employment Agreement is hereby ratified, approved and confirmed in all respects, and shall remain in full force and effect.

4. Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, applicable to agreements made and to be performed entirely within such state, other than conflict of laws principles thereof directing the application of any law other than that of Delaware.

 

1


5. Counterparts . This Amendment may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[ Remainder of Page Intentionally Blank; Signature Page Follows ]


IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by a duly authorized officer and the Executive has executed this Amendment as of the date first written above.

 

  JARDEN CORPORATION
By:   /s/ John E. Capps
  Name: John E. Capps
 

Title: Executive Vice President -

Administration, General Counsel and Secretary

  EXECUTIVE
  /s/ James E. Lillie
  Name: James E. Lillie


Exhibit A

SCHEDULE I

(Second Revised Schedule I to Fourth Amended and Restated Employment Agreement dated as of July 23, 2012, as amended, by and between Jarden Corporation and James E. Lillie)

On January 1 of each year during the Employment Period (or, if any such date is not a business day, on the next succeeding business day), provided Executive is employed on such date, Executive shall be entitled to receive an annual performance grant of shares of Restricted Stock as set forth in the table below. The restrictions on the Restricted Shares shall lapse based on achievement of a performance target equal to a target appreciation in the stock price of the common stock of the Company set by the Compensation Committee at the time of grant, but not to exceed a maximum appreciation percentage performance target according to the following table:

 

Grant (# of shares) 1

  Date   Maximum Stock Price Appreciation (%)
Performance Target (over Closing Price
on Last Trading Day of  Prior Year)
177,632   January 1, 2016   12%
168,750   January 1, 2017   12%
165,690   January 1, 2018   12%

In the event the Employment Period extends past December 31, 2018, in each additional year of the Employment Period beginning after December 31, 2018, the Executive shall be entitled to a grant of Restricted Stock in an amount to be determined each year by the Compensation Committee, with vesting determined in accordance with the performance targets set forth above, or such other methodology as the Executive and the Compensation Committee may mutually agree.

The performance target for vesting each of the annual grants listed above shall be achieved on the date that the average closing price of the Company’s common stock on the New York Stock Exchange (or such other securities exchange on which the Company’s common stock may then be traded) for any period of five consecutive trading days equals or exceeds a price representing an increase over the closing price on the last trading day of the prior calendar year at least equal to the target stock price appreciation percentage set by the Compensation Committee (up to the maximum set forth above). The performance target must be achieved, if at all, within five (5) years from the date of grant. If the performance target in not achieved within five (5) years from the date of grant, such grant will expire and be forfeited.

Capitalized terms used but not defined on this Schedule I shall have the meanings assigned thereto in the Fourth Amended and Restated Employment Agreement dated as of July 23, 2012, by and between Jarden Corporation and James E. Lillie, as amended, of which this Schedule I forms a part.

 

1   Gives effect to the three-for-two stock split of the Company’s common stock effected on November 24, 2014.

Exhibit 10.4

SEPARATION AGREEMENT

THIS SEPARATION AGREEMENT (this “ Agreement ”) is made as of December 13, 2015, by and between Jarden Corporation, a corporation organized and existing under the laws of the State of Delaware (the “ Company ”), and Martin E. Franklin (“ Executive ”), collectively referred to as the “ Parties ”.

RECITALS:

WHEREAS, Executive is employed by the Company as the Executive Chairman of the Company pursuant to that certain Fifth Amended and Restated Employment Agreement, dated as of July 23, 2012, between the Company and Executive, as amended by that certain Equity Award, Lock-Up and Amendment Agreement, dated as of December 19, 2013, between the Company and Executive (as amended, the “ Employment Agreement ”);

WHEREAS, the Company is a party to that certain Agreement and Plan of Merger, dated as of the date hereof (the “ Merger Agreement ”), by and among the Company, Newell Rubbermaid Inc., a Delaware corporation (“ Parent ”), and the other parties signatories thereto, pursuant to which, subject to the terms and conditions contained in the Merger Agreement, the Company will be merged with and into a wholly-owned subsidiary of Parent, immediately following which the Company will be merged with another wholly-owned subsidiary of Parent (“ Successor Sub ”) and the surviving entity thereof will become a wholly-owned subsidiary of Parent (the “ Merger ”);

WHEREAS, the Merger will constitute a “Change of Control of the Company” as such term is defined in the Employment Agreement;

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Company will enter into this Agreement with Executive in accordance with the Merger Agreement for the protection of the business and goodwill of Parent and its subsidiaries after the Merger; Executive will receive substantial consideration in exchange for his shares and others equity interests in the Company (including accelerated equity interests as a result of the Change of Control); Parent and its subsidiaries shall succeed to all of the business, property, assets and goodwill of the Company and its subsidiaries; Executive will agree to the noncompetition, confidentiality and other restrictive covenants herein for the protection of the business, property, assets and goodwill of Parent and its subsidiaries after the Merger, including their legitimate business interests in trade secrets and other confidential information and valuable customer and employee relationships; and Executive and the Company mutually agree that Executive’s employment will terminate on the consummation of the Merger; and

WHEREAS, the Parties wish to settle their mutual rights and obligations arising from such separation from employment subject to the terms and conditions as hereinafter set forth.


NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and in the Merger Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties hereto, the Parties agree as follows:

1. Definitions . Capitalized terms used herein without definition shall have the respective meanings given such terms in the Employment Agreement.

2. Termination of Employment .

(a) Executive’s employment with the Company shall terminate on the date on which the Merger is consummated pursuant to the Merger Agreement (the “ Separation Date ”). As of the Separation Date, Executive shall resign from and no longer be an employee, officer, director and/or manager (or any equivalent position) of the Company or any subsidiaries or affiliates thereof, and Executive agrees he shall execute all documents reasonably necessary to effect such resignations. The Parties hereby agree that for purposes of the Employment Agreement and this Agreement Executive’s termination of employment will be treated as a “Termination Without Cause” in connection with a “Change of Control of the Company” (as such terms are defined in the Employment Agreement), and that any notice period that may be required to be provided under the Employment Agreement is hereby waived.

(b) The Parties agrees that until the Separation Date, Executive shall continue to serve as Executive Chairman of the Company, subject to the terms and conditions of the Employment Agreement.

(c) For the avoidance of doubt, the Employment Agreement shall remain in full force and effect through and following the Separation Date, subject to any amendments or modifications contained in this Agreement. If the Merger Agreement is terminated without the Merger having been consummated, this Agreement shall terminate and the Parties’ rights and obligations hereunder shall be null and void ab initio and the Employment Agreement shall continue to be in full force and effect in accordance with its terms without reference to this Agreement.

3. Separation Payments and Benefits . In addition to the substantial consideration Executive will receive in connection with the Merger pursuant to the Merger Agreement, upon the Separation Date, subject to the execution of a release of claims in favor of the Company in substantially similar form to that attached hereto as Exhibit A , the Company shall provide Executive with the following benefits:

(a) Earned Salary and Other Vested Benefits . In accordance with Section 5(b) of the Employment Agreement, the Company shall pay Executive all Base Salary earned, but unpaid, for services rendered to the Company on or prior to the Separation Date in a lump sum on the Separation Date and all other Vested Benefits in accordance with the terms of each applicable plan, program or policy.

(b) Annual Bonus . In satisfaction of the annual bonus award made by the Compensation Committee of the Board of Directors of the Company (the “ Compensation Committee ”) for calendar year 2015, a bonus in the amount of $4,355,518 shall be paid to Executive in a lump sum on the Separation Date, less any amount previously paid relating to calendar year 2015 performance bonuses.

 

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(c) Severance Payment . In accordance with Section 5(b) of the Employment Agreement, the Company shall pay Executive a severance payment in a total gross amount estimated to be $19,419,273, subject to adjustment as set forth in Section 3(l) of this Agreement, which amount will be paid to Executive in a lump sum on the Separation Date.

(d) Other Benefits . The Company shall pay Executive an amount estimated to be $944,346, subject to adjustment as set forth in Section 3(l) of this Agreement, in respect of historical benefits including: rights with respect to life and long-term disability policies; health insurance policies; HSA savings accounts; 401(k) plans and other financial benefits.

(e) Vesting of Stock Awards . In accordance with the intent of Section 5(b) of the Employment Agreement and in consideration for the increase in duration pursuant to Section 4 of this Agreement from two years to four years of the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement, the balance of any unvested shares relating to the 1,800,000 restricted shares of common stock of the Company, par value $0.01 per share (“ Common Stock ”), granted to Executive and currently outstanding, but not yet vested, shall fully vest on the Separation Date and will thereafter be freely transferable (subject to any restrictions under applicable securities law or the Company’s insider trading policy for senior executives).

(f) Acceleration of Stock Awards . In accordance with the intent of Section 5(b) of the Employment Agreement and in consideration for the increase in duration pursuant to Section 4 of this Agreement from two years to four years of the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement, immediately prior to the consummation of the Merger, the Company shall issue Executive 375,000 restricted shares of Common Stock representing the number of restricted shares of Common Stock that would have been issued to Executive in 2017 (the “ 2017 Accelerated Shares ”) and an additional 368,421 restricted shares of Common Stock representing the number of restricted shares of Common Stock that would have been issued to Executive in 2018 (the “ 2018 Accelerated Shares ” and together with the 2017 Accelerated Shares, the “ Accelerated Shares ”), in each case pursuant to Section 3(c) of and Schedule I to the Employment Agreement (as supplemented by the Compensation Committee in accordance with Section 3(c)). The Accelerated Shares shall fully vest on the Separation Date, but shall be subject to the restrictions on transfer set forth in Section 5 of this Agreement.

(g) Company Aircraft . In accordance with Section 5(b) of the Employment Agreement, the Parties hereto agree that, until the third anniversary of the Separation Date, Executive shall be entitled to continued personal use of the Company’s existing Falcon 7x aircraft (the “Aircraft”) (registered to JAH Aircraft Holding Trust (the “ Trust ”)) (in substantially the same manner consistent with past practice, with the Executive having priority access to and use of the Aircraft), at the Company’s sole cost and expense for the first 75 hours in any calendar year (such hour usage to be determined regardless of the number of passengers in the Aircraft during such usage); provided, that (i) during such three-year period the Company shall continue to own or lease the Aircraft and maintain the Aircraft in good working and flying condition, (ii) during the six-month period beginning on the Separation Date, Executive shall pay to Company an amount equal to the value of the use of the Aircraft during such period (determined in accordance with applicable regulations under the Internal Revenue Code) and the Company shall

 

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reimburse Executive for the aggregate amounts paid by Executive with respect to such use during such six-month period on the first day of the seventh month following the Separation Date. and (iii) during such three-year period, all such personal use will be subject to compliance with all applicable FAA regulations. For the avoidance of doubt, any travel by Executive on the Aircraft to or from meetings of the board of directors of Parent shall be deemed to be business use at the direction and sole expense of Parent and the Company and shall neither count towards the 75 hours per year allotment described herein nor be subject to reimbursement by Executive. The Parties hereby agree that (i) Executive may exercise his option to purchase (either directly or through a controlled affiliate) the Aircraft as set forth in Section 5(b) of the Employment Agreement at any time up to December 31, 2016, and (ii) pursuant to the Employment Agreement the purchase price for the Aircraft shall be equal to the Aircraft’s tax book value at the time of such exercise, which amount as of December 31, 2016 will be $10,169,763; provided , however , that the tax book value of the Aircraft shall be reduced on a pro rata basis in accordance with the time passed since the prior calculation of tax book value of the Aircraft with respect to an exercise taking place prior to December 31, 2016. If Executive exercises the option to purchase the aircraft by delivering written notice to the Company of such election no later than thirty (30) days before such date, the Company shall cause the Trust to enter into a purchase and sale agreement in substantially similar form to that attached hereto as Exhibit B to this Agreement (the “ Aircraft Purchase Agreement ”), guaranty all obligations of the Trust under the Aircraft Purchase Agreement and take all necessary actions to consummate the sale of the Aircraft and transfer title to the Aircraft to Executive in accordance with the terms of the Aircraft Purchase Agreement. If Executive exercises the option to purchase the Aircraft, Executive shall also have the right to solicit and hire any current or former pilots, crew or other personnel who service or have serviced the Aircraft. In connection with this Section 3(g), the Company agrees that it shall not terminate that certain Aircraft Time Sharing Agreement, dated as of August 14, 2015, between the Company and Executive prior to the earlier of the third anniversary of the Separation Date and the date on which Executive acquires the Aircraft pursuant to this Section 3(g).

(h) D&O Insurance . The Company shall obtain and provide at its own expense the directors’ and officers’ liability insurance or directors’ and officers’ liability tail insurance policies covering Executive described in Section 4(e) of the Employment Agreement effective as of the Separation Date and shall maintain such insurance or tail policy in place for the period prescribed in Section 4(e) of the Employment Agreement.

(i) Aspen Office . The Company hereby grants Executive the option to acquire (either directly or through a controlled affiliate) from the Company (or the applicable subsidiary of the Company owning such property) the Aspen, Colorado, office space detailed on Exhibit C-1 attached hereto (the “ Aspen Office ”), pursuant to a purchase and sale agreement in substantially similar form to that attached hereto as Exhibit C-2 to this Agreement, which option must be exercised by Executive no later than the date of the consummation of the Merger. If Executive exercises the option to purchase the Aspen Office by delivering written notice to the Company of such election by such date, the purchase price shall be $2,900,000 and the parties shall enter into the purchase and sale agreement attached hereto as Exhibit C-2 (and to the extent the Aspen Office is owned by a subsidiary of the Company, the Company shall cause such subsidiary to enter into such agreement and consummate the sale). The purchase price for the Aspen Office shall be paid by having the Company reduce the net cash amounts payable to Executive under

 

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this Agreement by an amount equal to the purchase price for the Aspen Office, which amount, upon the closing of the sale of the Aspen Office, shall no longer be due and payable to Executive under this Agreement. Additionally, if Executive has timely exercised the right to purchase the Aspen Office pursuant to this Section 3(i), Executive shall be entitled to exclusive use and possession of the Aspen Office from the date of the option exercise through the closing of the transfer of title of the Aspen Office to Executive.

(j) Indemnification Rights . Executive shall maintain all of Executive’s rights to indemnification by the Company pursuant to Sections 4(d) and 4(f) of the Employment Agreement.

(k) Other Rights . Without duplication of any separation benefits described under Sections 3(a) through 3(j) of this Agreement, in accordance with Section 5(b) of the Employment Agreement, Executive shall receive all other Additional Termination Benefits to which Executive is entitled upon separation, including, but not limited to, vesting in full of benefits accrued under the employee retirement and savings plans of the Company and Executive’s (and his dependent’s) rights to continuing participation in Health Benefit Plans (collectively, “ Other Additional Termination Benefits ”); provided , however , that in no event shall the aggregate payments made (or value of benefits provided) in respect of Other Additional Termination Benefits under this Section 3(k) exceed an amount equal to $450,000 minus the aggregate amount of all adjustments made pursuant to Section 3(l) of this Agreement.

(l) Adjustments . The estimated severance payment of $19,419,273 and the other benefits payment of $944,346 set forth in Section 3(c) and Section 3(d) of this Agreement, respectively, are minimum estimates of such amounts due to Executive. The actual amounts payable to Executive shall be no less than such amounts, but may increase by up to an additional $450,000 in the aggregate after such payment amounts have been finally determined by the Company prior to the Separation Date.

4. Noncompetition, Confidentiality and Other Restrictive Covenants . Executive acknowledges and agrees that Executive shall continue to be bound by the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement through the fourth anniversary of the Separation Date; provided , however , that for purposes of such covenants “principal product line” shall be limited to only “principal product lines” of the Company as of the Separation Date without giving effect to any product lines of Parent and its subsidiaries as of the Separation Date or any product lines established following the Separation Date.

5. Restrictions on Accelerated Shares .

(a) Executive agrees that, notwithstanding anything to the contrary in this Agreement, Executive will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by Executive or any person in privity with Executive), directly or indirectly, or establish or increase a put equivalent position

 

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or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to any Accelerated Shares, or publicly announce an intention to effect any such transaction, until this Section 5(a) lapses in accordance with Section 5(c), except to satisfy tax withholding or as otherwise permitted by Section 5(b), below. For purposes of this Section 5(a), “Accelerated Shares” shall be any shares of stock of Parent received by Executive in exchange for Executive’s Accelerated Shares as a result of the Merger.

(b) The restrictions on transfer of Accelerated Shares in Section 5(a) above shall not apply to the transfer of any Accelerated Shares either during Executive’s lifetime or on death, by gift, will or intestate succession, to an immediate family member of Executive or to transfers to a trust the beneficiaries of which are exclusively Executive and/or a member or members of Executive’s immediate family; provided , however , that in any transfer pursuant to this Section 5(b) it shall be a condition to such transfer that the transferee executes and delivers to the Company an agreement in form satisfactory to the Company in its sole discretion stating that the transferee is receiving and holding the Accelerated Shares subject to the provisions of this Agreement, and there shall be no further transfer of such Accelerated Shares except in accordance with this Agreement.

(c) The restrictions on transfer of Accelerated Shares set forth in this Section 5 shall lapse on March 31, 2017 with respect to the 2017 Accelerated Shares and on March 31, 2018 with respect to the 2018 Accelerated Shares.

6. Miscellaneous .

(a) Section 409A Compliance . Section 7(p) of the Employment Agreement is hereby incorporated into this Agreement in its entirety; provided that references to the “Agreement” in such Section 7(p) shall be deemed to refer to both the Employment Agreement and this Agreement for purposes of this Section 6(a).

(b) Withholding . All payments and benefits payable pursuant to this Agreement shall be subject to reduction by all applicable withholdings, offsets, social security and other federal, state and local taxes and deductions.

(c) Arbitration . Except in the event of the need for immediate equitable relief from a court of competent jurisdiction to prevent irreparable harm pending arbitration relief, and except for enforcement of a party’s remedies to the extent such enforcement must be pursuant to court authorization or order under applicable law, any dispute or controversy arising under or in connection with this Agreement shall be resolved by binding arbitration. This arbitration shall be held in Florida and except to the extent inconsistent with this Agreement, shall be conducted in accordance with the Expedited Employment Arbitration Rules of the American Arbitration Association then in effect at the time of the arbitration and otherwise in accordance with principles which would be applied by a court of law or equity. The arbitrator shall be selected by the Company and Executive; provided, that if within fifteen (15) business days of the date of request for arbitration, the Parties have not been able to make such selection the dispute shall be held by a panel of three arbitrators one appointed by each of the Parties and the third appointed by the other two arbitrators.

 

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(d) Notices . Any notice required or desired to be delivered under this Agreement shall be in writing and shall be delivered personally, by courier service, by certified mail, return receipt requested, or by telecopy and shall be effective upon actual receipt by the party to which such notice shall be directed, and shall be addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):

If to the Company:

Jarden Corporation

2381 Executive Center Drive

Boca Raton, FL 33431

Attn: General Counsel

Fax: (561) 338-6766

If to Executive: To the address listed as Executive’s principal residence in the Company’s human resources records and to his principal place of employment with the Company.

(e) Assignment . Except as provided under Section 6(g) hereof, neither this Agreement nor any of the rights or obligations hereunder shall be assigned or delegated by any party hereto without the prior written consent of the other party.

(f) Binding Effect . This Agreement shall be binding on, and shall inure to the benefit of, the Company and any person or entity that succeeds to the interest of the Company (regardless of whether such succession does or does not occur by operation of law) by reason of the sale of all or a portion of the Company’s stock, a merger, consolidation or reorganization involving the Company or, unless the Company otherwise elects in writing, a sale of the assets of the business of the Company (or portion thereof) in which Executive performs a majority of his services. Without limiting the generality of the foregoing, this Agreement shall be binding on, and shall inure to the benefit of, Successor Sub if Successor Sub is the surviving entity in the Merger. Additionally, if the Company or any of its successors or assigns (including, but not limited to Successor Sub) (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company shall assume all of the rights and obligations set forth in this Agreement. This Agreement shall also inure to the benefit of Executive’s heirs, executors, administrators and legal representatives.

(g) Construction . In the event of any conflict between the provisions of this Agreement and the provisions of the Employment Agreement, the provisions of this Agreement shall control.

(h) Governing Law . This Agreement is made and executed and shall be governed by the laws of the State of Delaware, without regard to the conflicts of law principles thereof.

 

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(i) Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

(j) Headings . The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

(k) Entire Agreement . This Agreement and the Employment Agreement constitute the entire agreement between the Parties hereto with respect to the matters referred to herein and therein. No other agreement relating to the matters referred to herein and therein shall be binding between the Parties. There are no promises, representations, inducements or statements between the Parties other than those that are expressly contained in this Agreement and the Employment Agreement. Executive acknowledges that he is entering into this Agreement of his own free will and accord, and with no duress, that he has read this Agreement and that he understands it and its legal consequences and has been advised to consult with an attorney before executing this Agreement.

(l) Amendments . This Agreement may not be altered, modified or amended except by a written instrument signed by each of the Parties hereto.

(m) Severability . In the event that one or more of the provisions of this Agreement shall become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.

[ The remainder of this page has been intentionally left blank ]

 

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IN WITNESS WHEREOF, the Parties have signed this Separation Agreement as of the date first above written.

 

Company :
JARDEN CORPORATION

/s/ John E. Capps

Name:   John E. Capps
Title:   Executive Vice President—Administration, General Counsel and Secretary
Executive :

/s/ Martin E. Franklin

Martin E. Franklin

[Signature Page to Separation Agreement]

Exhibit 10.5

SEPARATION AGREEMENT

THIS SEPARATION AGREEMENT (this “ Agreement ”) is made as of December 13, 2015 by and between Jarden Corporation, a corporation organized and existing under the laws of the State of Delaware (the “ Company ”), and Ian G.H. Ashken (“ Executive ”), collectively referred to as the “ Parties ”.

RECITALS:

WHEREAS, Executive is employed by the Company as the Vice Chairman and President of the Company pursuant to that certain Fifth Amended and Restated Employment Agreement, dated as of July 23, 2012, between the Company and Executive, as amended by that certain Equity Award, Lock-Up and Amendment Agreement, dated as of December 19, 2013, between the Company and Executive (as amended, the “ Employment Agreement ”);

WHEREAS, the Company is a party to that certain Agreement and Plan of Merger, dated as of the date hereof (the “ Merger Agreement ”), by and among the Company, Newell Rubbermaid Inc., a Delaware corporation (“ Parent ”), and the other parties signatories thereto, pursuant to which, subject to the terms and conditions contained in the Merger Agreement, the Company will be merged with and into a wholly-owned subsidiary of Parent, immediately following which the Company will be merged with another wholly-owned subsidiary of Parent (“ Successor Sub ”) and the surviving entity thereof will become a wholly-owned subsidiary of Parent (the “ Merger ”);

WHEREAS, the Merger will constitute a “Change of Control of the Company” as such term is defined in the Employment Agreement;

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Company will enter into this Agreement with Executive in accordance with the Merger Agreement for the protection of the business and goodwill of Parent and its subsidiaries after the Merger; Executive will receive substantial consideration in exchange for his shares and others equity interests in the Company (including accelerated equity interests as a result of the Change of Control); Parent and its subsidiaries shall succeed to all of the business, property, assets and goodwill of the Company and its subsidiaries; Executive will agree to the noncompetition, confidentiality and other restrictive covenants herein for the protection of the business, property, assets and goodwill of Parent and its subsidiaries after the Merger, including their legitimate business interests in trade secrets and other confidential information and valuable customer and employee relationships; and Executive and the Company mutually agree that Executive’s employment will terminate on the consummation of the Merger; and

WHEREAS, the Parties wish to settle their mutual rights and obligations arising from such separation from employment subject to the terms and conditions as hereinafter set forth.


NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and in the Merger Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties hereto, the Parties agree as follows:

1. Definitions . Capitalized terms used herein without definition shall have the respective meanings given such terms in the Employment Agreement.

2. Termination of Employment .

(a) Executive’s employment with the Company shall terminate on the date on which the Merger is consummated pursuant to the Merger Agreement (the “ Separation Date ”). As of the Separation Date, Executive shall resign from and no longer be an employee, officer, director and/or manager (or any equivalent position) of the Company or any subsidiaries or affiliates thereof, and Executive agrees he shall execute all documents reasonably necessary to effect such resignations. The Parties hereby agree that for purposes of the Employment Agreement and this Agreement Executive’s termination of employment will be treated as a “Termination Without Cause” in connection with a “Change of Control of the Company” (as such terms are defined in the Employment Agreement), and that any notice period that may be required to be provided under the Employment Agreement is hereby waived.

(b) The Parties agrees that until the Separation Date, Executive shall continue to serve as Vice Chairman and President of the Company, subject to the terms and conditions of the Employment Agreement.

(c) For the avoidance of doubt, the Employment Agreement shall remain in full force and effect through and following the Separation Date, subject to any amendments or modifications contained in this Agreement. If the Merger Agreement is terminated without the Merger having been consummated, this Agreement shall terminate and the Parties’ rights and obligations hereunder shall be null and void ab initio and the Employment Agreement shall continue to be in full force and effect in accordance with its terms without reference to this Agreement.

3. Separation Payments and Benefits . In addition to the substantial consideration Executive will receive in connection with the Merger pursuant to the Merger Agreement, upon the Separation Date, subject to the execution of a release of claims in favor of the Company in substantially similar form to that attached hereto as Exhibit A , the Company shall provide Executive with the following benefits:

(a) Earned Salary and Other Vested Benefits . In accordance with Section 5(b) of the Employment Agreement, the Company shall pay Executive all Base Salary earned, but unpaid, for services rendered to the Company on or prior to the Separation Date in a lump sum on the Separation Date and all other Vested Benefits in accordance with the terms of each applicable plan, program or policy.

(b) Annual Bonus . In satisfaction of the annual bonus award made by the Compensation Committee of the Board of Directors of the Company (the “ Compensation Committee ”) for calendar year 2015, a bonus in the amount of $2,040,156 shall be paid to Executive in a lump sum on the Separation Date, less any amount previously paid relating to calendar year 2015 performance bonuses.

 

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(c) Severance Payment . In accordance with Section 5(b) of the Employment Agreement, the Company shall pay Executive a severance payment in a total gross amount estimated to be $9,096,126, subject to adjustment as set forth in Section 3(k) of this Agreement, which amount will be paid to Executive in a lump sum on the Separation Date.

(d) Other Benefits . The Company shall pay Executive an amount estimated to be $672,951, subject to adjustment as set forth in Section 3(k) of this Agreement, in respect of historical benefits including: rights with respect to life and long-term disability policies; health insurance policies; HSA savings accounts; 401(k) plans and other financial benefits.

(e) Vesting of Stock Awards . In accordance with the intent of Section 5(b) of the Employment Agreement and in consideration for the increase in duration pursuant to Section 4 of this Agreement from two years to four years of the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement, the balance of any unvested shares relating to the 900,000 restricted shares of common stock of the Company, par value $0.01 per share (“ Common Stock ”), granted to Executive and currently outstanding, but not yet vested, shall fully vest on the Separation Date and will thereafter be freely transferable (subject to any restrictions under applicable securities law or the Company’s insider trading policy for senior executives).

(f) Acceleration of Stock Awards . In accordance with the intent of Section 5(b) of the Employment Agreement and in consideration for the increase in duration pursuant to Section 4 of this Agreement from two years to four years of the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement, immediately prior to the consummation of the Merger, the Company shall issue Executive 168,750 restricted shares of Common Stock representing the number of restricted shares of Common Stock that would have been issued to Executive in 2017 (the “ 2017 Accelerated Shares ”) and an additional 165,690 restricted shares of Common Stock representing the number of restricted shares of Common Stock that would have been issued to Executive in 2018 (the “ 2018 Accelerated Shares ” and together with the 2017 Accelerated Shares, the “ Accelerated Shares ”), in each case pursuant to Section 3(c) of and Schedule I to the Employment Agreement (as supplemented by the Compensation Committee in accordance with Section 3(c)). The Accelerated Shares shall fully vest on the Separation Date, but shall be subject to the restrictions on transfer set forth in Section 5 of this Agreement.

(g) D&O Insurance . The Company shall obtain and provide at its own expense the directors’ and officers’ liability insurance or directors’ and officers’ liability tail insurance policies covering Executive described in Section 4(e) of the Employment Agreement effective as of the Separation Date and shall maintain such insurance or tail policy in place for the period prescribed in Section 4(e) of the Employment Agreement.

(h) Indemnification Rights . Executive shall maintain all of Executive’s rights to indemnification by the Company pursuant to Sections 4(d) and 4(f) of the Employment Agreement.

 

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(i) Other Rights . Without duplication of any separation benefits described under Sections 3(a) through 3(h) of this Agreement, in accordance with Section 5(b) of the Employment Agreement, Executive shall receive all other Additional Termination Benefits to which Executive is entitled upon separation, including, but not limited to, vesting in full of benefits accrued under the employee retirement and savings plans of the Company and Executive’s (and his dependent’s) rights to continuing participation in Health Benefit Plans (collectively, “ Other Additional Termination Benefits ”); provided , however , that in no event shall the aggregate payments made (or value of benefits provided) in respect of Other Additional Termination Benefits under this Section 3(i) exceed an amount equal to $225,000 minus the aggregate amount of all adjustments made pursuant to Section 3(j) of this Agreement.

(j) Adjustments . The estimated severance payment of $9,096,126 and the other benefits payment of $672,951 set forth in Section 3(c) and Section 3(d) of this Agreement, respectively, are minimum estimates of such amounts due to Executive. The actual amounts payable to Executive shall be no less than such amounts, but may increase by up to an additional $225,000 in the aggregate after such payment amounts have been finally determined by the Company prior to the Separation Date.

4. Noncompetition, Confidentiality and Other Restrictive Covenants . Executive acknowledges and agrees that Executive shall continue to be bound by the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement through the fourth anniversary of the Separation Date; provided , however , that for purposes of such covenants “principal product line” shall be limited to only “principal product lines” of the Company as of the Separation Date without giving effect to any product lines of Parent and its subsidiaries as of the Separation Date or any product lines established following the Separation Date.

5. Restrictions on Accelerated Shares .

(a) Executive agrees that, notwithstanding anything to the contrary in this Agreement, Executive will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by Executive or any person in privity with Executive), directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to any Accelerated Shares, or publicly announce an intention to effect any such transaction, until this Section 5(a) lapses in accordance with Section 5(c), except to satisfy tax withholding or as otherwise permitted by Section 5(b), below. For purposes of this Section 5(a), “Accelerated Shares” shall be any shares of stock of Parent received by Executive in exchange for Executive’s Accelerated Shares as a result of the Merger.

(b) The restrictions on transfer of Accelerated Shares in Section 5(a) above shall not apply to the transfer of any Accelerated Shares either during Executive’s lifetime or on death, by gift, will or intestate succession, to an immediate family member of Executive or to transfers to a trust the beneficiaries of which are exclusively Executive and/or a member or members of Executive’s immediate family; provided , however , that in any transfer pursuant to this Section

 

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5(b) it shall be a condition to such transfer that the transferee executes and delivers to the Company an agreement in form satisfactory to the Company in its sole discretion stating that the transferee is receiving and holding the Accelerated Shares subject to the provisions of this Agreement, and there shall be no further transfer of such Accelerated Shares except in accordance with this Agreement.

(c) The restrictions on transfer of Accelerated Shares set forth in this Section 5 shall lapse on March 31, 2017 with respect to the 2017 Accelerated Shares and on March 31, 2018 with respect to the 2018 Accelerated Shares.

6. Miscellaneous .

(a) Section 409A Compliance . Section 7(p) of the Employment Agreement is hereby incorporated into this Agreement in its entirety; provided that references to the “Agreement” in such Section 7(p) shall be deemed to refer to both the Employment Agreement and this Agreement for purposes of this Section 6(a).

(b) Withholding . All payments and benefits payable pursuant to this Agreement shall be subject to reduction by all applicable withholdings, offsets, social security and other federal, state and local taxes and deductions.

(c) Arbitration . Except in the event of the need for immediate equitable relief from a court of competent jurisdiction to prevent irreparable harm pending arbitration relief, and except for enforcement of a party’s remedies to the extent such enforcement must be pursuant to court authorization or order under applicable law, any dispute or controversy arising under or in connection with this Agreement shall be resolved by binding arbitration. This arbitration shall be held in Florida and except to the extent inconsistent with this Agreement, shall be conducted in accordance with the Expedited Employment Arbitration Rules of the American Arbitration Association then in effect at the time of the arbitration and otherwise in accordance with principles which would be applied by a court of law or equity. The arbitrator shall be selected by the Company and Executive; provided, that if within fifteen (15) business days of the date of request for arbitration, the Parties have not been able to make such selection the dispute shall be held by a panel of three arbitrators one appointed by each of the Parties and the third appointed by the other two arbitrators.

(d) Notices . Any notice required or desired to be delivered under this Agreement shall be in writing and shall be delivered personally, by courier service, by certified mail, return receipt requested, or by telecopy and shall be effective upon actual receipt by the party to which such notice shall be directed, and shall be addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):

If to the Company:

Jarden Corporation

2381 Executive Center Drive

Boca Raton, FL 33431

Attn: General Counsel

Fax: 561-338-6766

 

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If to Executive: To the address listed as Executive’s principal residence in the Company’s human resource records and to his principal place of employment with the Company.

(e) Assignment . Except as provided under Section 6(g) hereof, neither this Agreement nor any of the rights or obligations hereunder shall be assigned or delegated by any party hereto without the prior written consent of the other party.

(f) Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of, the Company and any person or entity that succeeds to the interest of the Company (regardless of whether such succession does or does not occur by operation of law) by reason of the sale of all or a portion of the Company’s stock, a merger, consolidation or reorganization involving the Company or, unless the Company otherwise elects in writing, a sale of the assets of the business of the Company (or portion thereof) in which Executive performs a majority of his services. Without limiting the generality of the foregoing, this Agreement shall be binding on, and shall inure to the benefit of, Successor Sub if Successor Sub is the surviving entity in the Merger. Additionally, if the Company or any of its successors or assigns (including, but not limited to Successor Sub) (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company shall assume all of the rights and obligations set forth in this Agreement. This Agreement shall also inure to the benefit of Executive’s heirs, executors, administrators and legal representatives.

(g) Construction. In the event of any conflict between the provisions of this Agreement and the provisions of the Employment Agreement, the provisions of this Agreement shall control.

(h) Governing Law . This Agreement is made and executed and shall be governed by the laws of the State of Delaware, without regard to the conflicts of law principles thereof.

(i) Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

(j) Headings . The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

(k) Entire Agreement . This Agreement and the Employment Agreement constitute the entire agreement between the Parties hereto with respect to the matters referred to herein and therein. No other agreement relating to the matters referred to herein and therein shall be binding between the Parties. There are no promises, representations, inducements or statements between the Parties other than those that are expressly contained in this Agreement and the Employment Agreement. Executive acknowledges that he is entering into this Agreement of his own free will and accord, and with no duress, that he has read this Agreement and that he understands it and its legal consequences and has been advised to consult with an attorney before executing this Agreement.

 

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(l) Amendments . This Agreement may not be altered, modified or amended except by a written instrument signed by each of the Parties hereto.

(m) Severability . In the event that one or more of the provisions of this Agreement shall become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.

[ The remainder of this page has been intentionally left blank ]

 

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IN WITNESS WHEREOF, the Parties have signed this Separation Agreement as of the date first above written.

 

Company :
JARDEN CORPORATION

/s/ John E. Capps

Name:   John E. Capps
Title:   Executive Vice President—Administration, General Counsel and Secretary
Executive :

/s/ Ian G.H. Ashken

Ian G.H. Ashken

[Signature Page to Separation Agreement]

Exhibit 10.6

SEPARATION AGREEMENT

THIS SEPARATION AGREEMENT (this “ Agreement ”) is made as of December 13, 2015 by and between Jarden Corporation, a corporation organized and existing under the laws of the State of Delaware (the “ Company ”), and James E. Lillie (“ Executive ”), collectively referred to as the “ Parties ”.

RECITALS:

WHEREAS, Executive is employed by the Company as the Chief Executive Officer of the Company pursuant to that certain Fourth Amended and Restated Employment Agreement, dated as of July 23, 2012, between the Company and Executive, as amended by that certain Equity Award, Lock-Up and Amendment Agreement, dated as of December 19, 2013, between the Company and Executive (as amended, the “ Employment Agreement ”);

WHEREAS, the Company is a party to that certain Agreement and Plan of Merger, dated as of the date hereof (the “ Merger Agreement ”), by and among the Company, Newell Rubbermaid Inc., a Delaware corporation (“ Parent ”), and the other parties signatories thereto, pursuant to which, subject to the terms and conditions contained in the Merger Agreement, the Company will be merged with and into a wholly-owned subsidiary of Parent, immediately following which the Company will be merged with another wholly-owned subsidiary of Parent (“ Successor Sub ”) and the surviving entity thereof will become a wholly-owned subsidiary of Parent (the “ Merger ”);

WHEREAS, the Merger will constitute a “Change of Control of the Company” as such term is defined in the Employment Agreement;

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Company will enter into this Agreement with Executive in accordance with the Merger Agreement for the protection of the business and goodwill of Parent and its subsidiaries after the Merger; Executive will receive substantial consideration in exchange for his shares and others equity interests in the Company (including accelerated equity interests as a result of the Change of Control); Parent and its subsidiaries shall succeed to all of the business, property, assets and goodwill of the Company and its subsidiaries; Executive will agree to the noncompetition, confidentiality and other restrictive covenants herein for the protection of the business, property, assets and goodwill of Parent and its subsidiaries after the Merger, including their legitimate business interests in trade secrets and other confidential information and valuable customer and employee relationships; and Executive and the Company mutually agree that Executive’s employment will terminate on the consummation of the Merger; and

WHEREAS, the Parties wish to settle their mutual rights and obligations arising from such separation from employment subject to the terms and conditions as hereinafter set forth.


NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and in the Merger Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties hereto, the Parties agree as follows:

1. Definitions . Capitalized terms used herein without definition shall have the respective meanings given such terms in the Employment Agreement.

2. Termination of Employment .

(a) Executive’s employment with the Company shall terminate on the date on which the Merger is consummated pursuant to the Merger Agreement (the “ Separation Date ”). As of the Separation Date, Executive shall resign from and no longer be an employee, officer, director and/or manager (or any equivalent position) of the Company or any subsidiaries or affiliates thereof, and Executive agrees he shall execute all documents reasonably necessary to effect such resignations. The Parties hereby agree that for purposes of the Employment Agreement and this Agreement Executive’s termination of employment will be treated as a “Termination Without Cause” in connection with a “Change of Control of the Company” (as such terms are defined in the Employment Agreement), and that any notice period that may be required to be provided under the Employment Agreement is hereby waived.

(b) The Parties agrees that until the Separation Date, Executive shall continue to serve as Chief Executive Officer of the Company, subject to the terms and conditions of the Employment Agreement.

(c) For the avoidance of doubt, the Employment Agreement shall remain in full force and effect through and following the Separation Date, subject to any amendments or modifications contained in this Agreement. If the Merger Agreement is terminated without the Merger having been consummated, this Agreement shall terminate and the Parties’ rights and obligations hereunder shall be null and void ab initio and the Employment Agreement shall continue to be in full force and effect in accordance with its terms without reference to this Agreement.

3. Separation Payments and Benefits . In addition to the substantial consideration Executive will receive in connection with the Merger pursuant to the Merger Agreement, upon the Separation Date, subject to the execution of a release of claims in favor of the Company in substantially similar form to that attached hereto as Exhibit A , the Company shall provide Executive with the following benefits:

(a) Earned Salary and Other Vested Benefits . In accordance with Section 5(b) of the Employment Agreement, the Company shall pay Executive all Base Salary earned, but unpaid, for services rendered to the Company on or prior to the Separation Date in a lump sum on the Separation Date and all other Vested Benefits in accordance with the terms of each applicable plan, program or policy.

(b) Annual Bonus . In satisfaction of the annual bonus award made by the Compensation Committee of the Board of Directors of the Company (the “ Compensation Committee ”) for calendar year 2015, a bonus in the amount of $2,040,156 shall be paid to Executive in a lump sum on the Separation Date, less any amount previously paid relating to calendar year 2015 performance bonuses.

 

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(c) Severance Payment . In accordance with Section 5(b) of the Employment Agreement, the Company shall pay Executive a severance payment in a total gross amount estimated to be $9,096,126, subject to adjustment as set forth in Section 3(k) of this Agreement, which amount will be paid to Executive in a lump sum on the Separation Date.

(d) Other Benefits . The Company shall pay Executive an amount estimated to be $154,071, subject to adjustment as set forth in Section 3(k) of this Agreement, in respect of historical benefits including: rights with respect to life and long-term disability policies; health insurance policies; HSA savings accounts; 401(k) plans and other financial benefits.

(e) Vesting of Stock Awards . In accordance with the intent of Section 5(b) of the Employment Agreement and in consideration for the increase in duration pursuant to Section 4 of this Agreement from two years to four years of the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement, the balance of any unvested shares relating to the 900,000 restricted shares of common stock of the Company, par value $0.01 per share (“ Common Stock ”), granted to Executive and currently outstanding, but not yet vested, shall fully vest on the Separation Date and will thereafter be freely transferable (subject to any restrictions under applicable securities law or the Company’s insider trading policy for senior executives).

(f) Acceleration of Stock Awards . In accordance with the intent of Section 5(b) of the Employment Agreement and in consideration for the increase in duration pursuant to Section 4 of this Agreement from two years to four years of the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement, immediately prior to the consummation of the Merger, the Company shall issue Executive 168,750 restricted shares of Common Stock representing the number of restricted shares of Common Stock that would have been issued to Executive in 2017 (the “ 2017 Accelerated Shares ”) and an additional 165,690 restricted shares of Common Stock representing the number of restricted shares of Common Stock that would have been issued to Executive in 2018 (the “ 2018 Accelerated Shares ” and together with the 2017 Accelerated Shares, the “ Accelerated Shares ”), in each case pursuant to Section 3(c) of and Schedule I to the Employment Agreement (as supplemented by the Compensation Committee in accordance with Section 3(c)). The Accelerated Shares shall fully vest on the Separation Date, but shall be subject to the restrictions on transfer set forth in Section 5 of this Agreement.

(g) D&O Insurance . The Company shall obtain and provide at its own expense the directors’ and officers’ liability insurance or directors’ and officers’ liability tail insurance policies covering Executive described in Section 4(e) of the Employment Agreement effective as of the Separation Date and shall maintain such insurance or tail policy in place for the period prescribed in Section 4(e) of the Employment Agreement.

(h) Indemnification Rights . Executive shall maintain all of Executive’s rights to indemnification by the Company pursuant to Sections 4(d) and 4(f) of the Employment Agreement.

 

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(i) Other Rights . Without duplication of any separation benefits described under Sections 3(a) through 3(h) of this Agreement, in accordance with Section 5(b) of the Employment Agreement, Executive shall receive all other Additional Termination Benefits to which Executive is entitled upon separation, including, but not limited to, vesting in full of benefits accrued under the employee retirement and savings plans of the Company and Executive’s (and his dependent’s) rights to continuing participation in Health Benefit Plans (collectively, “ Other Additional Termination Benefits ”); provided , however , that in no event shall the aggregate payments made (or value of benefits provided) in respect of Other Additional Termination Benefits under this Section 3(i) exceed an amount equal to $225,000 minus the aggregate amount of all adjustments made pursuant to Section 3(j) of this Agreement.

(j) Adjustments . The estimated severance payment of $9,096,126 and the other benefits payment of $154,071 set forth in Section 3(c) and Section 3(d) of this Agreement, respectively, are minimum estimates of such amounts due to Executive. The actual amounts payable to Executive shall be no less than such amounts, but may increase by up to an additional $225,000 in the aggregate after such payment amounts have been finally determined by the Company prior to the Separation Date.

4. Noncompetition, Confidentiality and Other Restrictive Covenants . Executive acknowledges and agrees that Executive shall continue to be bound by the noncompetition, confidentiality and other covenants contained in Section 6 of the Employment Agreement through the fourth anniversary of the Separation Date; provided , however , that for purposes of such covenants “principal product line” shall be limited to only “principal product lines” of the Company as of the Separation Date without giving effect to any product lines of Parent and its subsidiaries as of the Separation Date or any product lines established following the Separation Date.

5. Restrictions on Accelerated Shares .

(a) Executive agrees that, notwithstanding anything to the contrary in this Agreement, Executive will not, without the prior written consent of the Company, offer, sell, transfer, contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by Executive or any person in privity with Executive), directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to any Accelerated Shares, or publicly announce an intention to effect any such transaction, until this Section 5(a) lapses in accordance with Section 5(c), except to satisfy tax withholding or as otherwise permitted by Section 5(b), below. For purposes of this Section 5(a), “Accelerated Shares” shall be any shares of stock of Parent received by Executive in exchange for Executive’s Accelerated Shares as a result of the Merger.

(b) The restrictions on transfer of Accelerated Shares in Section 5(a) above shall not apply to the transfer of any Accelerated Shares either during Executive’s lifetime or on death, by gift, will or intestate succession, to an immediate family member of Executive or to transfers to a trust the beneficiaries of which are exclusively Executive and/or a member or members of Executive’s immediate family; provided , however , that in any transfer pursuant to this Section

 

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5(b) it shall be a condition to such transfer that the transferee executes and delivers to the Company an agreement in form satisfactory to the Company in its sole discretion stating that the transferee is receiving and holding the Accelerated Shares subject to the provisions of this Agreement, and there shall be no further transfer of such Accelerated Shares except in accordance with this Agreement.

(c) The restrictions on transfer of Accelerated Shares set forth in this Section 5 shall lapse on March 31, 2017 with respect to the 2017 Accelerated Shares and on March 31, 2018 with respect to the 2018 Accelerated Shares.

6. Miscellaneous .

(a) Section 409A Compliance . Section 7(p) of the Employment Agreement is hereby incorporated into this Agreement in its entirety; provided that references to the “Agreement” in such Section 7(p) shall be deemed to refer to both the Employment Agreement and this Agreement for purposes of this Section 6(a).

(b) Withholding . All payments and benefits payable pursuant to this Agreement shall be subject to reduction by all applicable withholdings, offsets, social security and other federal, state and local taxes and deductions.

(c) Arbitration . Except in the event of the need for immediate equitable relief from a court of competent jurisdiction to prevent irreparable harm pending arbitration relief, and except for enforcement of a party’s remedies to the extent such enforcement must be pursuant to court authorization or order under applicable law, any dispute or controversy arising under or in connection with this Agreement shall be resolved by binding arbitration. This arbitration shall be held in Florida and except to the extent inconsistent with this Agreement, shall be conducted in accordance with the Expedited Employment Arbitration Rules of the American Arbitration Association then in effect at the time of the arbitration and otherwise in accordance with principles which would be applied by a court of law or equity. The arbitrator shall be selected by the Company and Executive; provided, that if within fifteen (15) business days of the date of request for arbitration, the Parties have not been able to make such selection the dispute shall be held by a panel of three arbitrators one appointed by each of the Parties and the third appointed by the other two arbitrators.

(d) Notices . Any notice required or desired to be delivered under this Agreement shall be in writing and shall be delivered personally, by courier service, by certified mail, return receipt requested, or by telecopy and shall be effective upon actual receipt by the party to which such notice shall be directed, and shall be addressed as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):

If to the Company:

Jarden Corporation

2381 Executive Center Drive

Boca Raton, FL 33431

Attn: General Counsel

Fax: 561-338-6766

 

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If to Executive: To the address listed as Executive’s principal residence in the Company’s human resource records and to his principal place of employment with the Company.

(e) Assignment . Except as provided under Section 6(g) hereof, neither this Agreement nor any of the rights or obligations hereunder shall be assigned or delegated by any party hereto without the prior written consent of the other party.

(f) Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of, the Company and any person or entity that succeeds to the interest of the Company (regardless of whether such succession does or does not occur by operation of law) by reason of the sale of all or a portion of the Company’s stock, a merger, consolidation or reorganization involving the Company or, unless the Company otherwise elects in writing, a sale of the assets of the business of the Company (or portion thereof) in which Executive performs a majority of his services. Without limiting the generality of the foregoing, this Agreement shall be binding on, and shall inure to the benefit of, Successor Sub if Successor Sub is the surviving entity in the Merger. Additionally, if the Company or any of its successors or assigns (including, but not limited to Successor Sub) (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any individual, corporation or other entity, then, and in each such case, proper provisions shall be made so that the successors and assigns of the Company shall assume all of the rights and obligations set forth in this Agreement. This Agreement shall also inure to the benefit of Executive’s heirs, executors, administrators and legal representatives.

(g) Construction. In the event of any conflict between the provisions of this Agreement and the provisions of the Employment Agreement, the provisions of this Agreement shall control.

(h) Governing Law . This Agreement is made and executed and shall be governed by the laws of the State of Delaware, without regard to the conflicts of law principles thereof.

(i) Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

(j) Headings . The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

(k) Entire Agreement . This Agreement and the Employment Agreement constitute the entire agreement between the Parties hereto with respect to the matters referred to herein and therein. No other agreement relating to the matters referred to herein and therein shall be binding between the Parties. There are no promises, representations, inducements or statements between the Parties other than those that are expressly contained in this Agreement and the Employment Agreement. Executive acknowledges that he is entering into this Agreement of his own free will and accord, and with no duress, that he has read this Agreement and that he understands it and its legal consequences and has been advised to consult with an attorney before executing this Agreement.

 

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(l) Amendments . This Agreement may not be altered, modified or amended except by a written instrument signed by each of the Parties hereto.

(m) Severability . In the event that one or more of the provisions of this Agreement shall become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.

[ The remainder of this page has been intentionally left blank ]

 

7


IN WITNESS WHEREOF, the Parties have signed this Separation Agreement as of the date first above written.

 

Company :
JARDEN CORPORATION

/s/ John E. Capps

Name:   John E. Capps
Title:   Executive Vice President—Administration, General Counsel and Secretary
Executive :

/s/ James E. Lillie

James E. Lillie

[Signature Page to Separation Agreement]