Exhibit 10.1
EMPLOYMENT AGREEMENT (this “Agreement”)
dated January 31, 2017, by and among BERRY PLASTICS CORPORATION, a Delaware corporation (the “Company”),
BERRY PLASTICS GROUP, INC., a Delaware corporation (the “Parent” and collectively with the Company, the
“Employer”) and Thomas E. Salmon (the “Executive”).
WHEREAS, the Company and the Parent each
desire to employ the Executive as Chief Executive Officer and the Executive desires to be employed by the Company and the Parent
as Chief Executive Officer effective as of February 3, 2017 (such date, the “Effective Date”);
NOW THEREFORE, in consideration of the
mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section
1. Employment Period.
The initial term of the Executive’s employment
will commence on the Effective Date, and end on the fifth anniversary of the Effective Date (the “Initial Employment Period”),
unless terminated earlier pursuant to Section 3 of this Agreement; provided, however, that as of the expiration date of each of
(i) the Initial Employment Period and (ii) if applicable, any Renewal Period (as defined below), the Employment Period will automatically
be extended for a one-year period (each, a “Renewal Period”), unless either party gives at least ninety (90)
days written notice prior to such expiration date of its intention not to renew the Employment Period (the Initial Employment Period
together with each subsequent Renewal Period shall constitute the “Employment Period”). A notice of nonrenewal
by the Employer accompanied by a termination of employment by the Employer at the expiration of the Employment Period shall be
treated as a termination without Cause. The Employment Period shall automatically end upon termination of the Executive’s
employment for any reason. Upon the Executive’s termination of employment with the Employer for any reason, he shall immediately
resign all positions (including directorships) with the Employer or any Affiliate. For purposes of this Agreement, an “Affiliate”
means (a) any person, firm, corporation, partnership, association or entity of which the Company or the Parent, as applicable,
directly or indirectly or through one or more intermediaries, owns equity securities possessing fifty percent (50%) or more of
the total combined voting power of all classes of equity securities and (b) any “Affiliate” as defined in the Berry
Plastics Group, Inc. 2015 Long-Term Incentive Plan.
Section
2. Terms of Employment.
(a) Position.
During the Employment Period, the Executive shall serve as the Chief Executive Officer of the Company and as the Chief Executive
Officer of the Parent and perform such duties and responsibilities customary to such positions. The Executive shall report to the
Board of Directors of the Company (the “Board”) with respect to his service for the Company and the Board of
Directors of the Parent (the “Parent Board”) with respect to his service for the Parent. If elected, the Executive
shall also serve as a member of the Board and as a member of the Parent Board or any other board of directors or similar governing
body of the Company, the Parent, or any Affiliate, without additional compensation for such service. At the request of the Company
or Parent, as applicable, the Executive shall also serve as an officer of any Affiliate without additional compensation.
(b) Duties.
During the Employment Period, the Executive agrees to devote substantially all of his business time and efforts to the business
and affairs of the Employer. Notwithstanding the foregoing, nothing herein shall prohibit the Executive from (i) serving on civic
or charitable boards or committees, (ii) delivering lectures or fulfilling speaking engagements and (iii) managing personal
investments, so long as such activities do not interfere with the performance of the Executive’s responsibilities hereunder.
With the consent of the Board, Executive may serve on the board of directors of other for-profit entities. Executive agrees to
discharge his duties in compliance with all Employer policies as in effect from time to time.
(c) Compensation.
(i) Base
Salary. During the Employment Period, the Executive shall receive an initial annual base salary in an amount equal to $950,000
(as may be adjusted from time to time, the “Annual Base Salary”), which shall be paid in accordance with the
customary payroll practices of the Employer (but no less frequently than in equal monthly installments). The Annual Base Salary
will be reviewed by the Parent Board or the Compensation Committee of the Parent Board (the “Compensation Committee”)
or its designee annually for adjustments.
(ii) Bonuses.
During the Employment Period, the Parent shall establish an annual bonus plan for each fiscal year of the Parent (the “Plan”)
pursuant to which the Executive will be eligible to receive a target annual bonus in an amount determined by the Compensation Committee
(the “Bonus”). For the fiscal year containing the Effective Date, Executive will be eligible to receive a Bonus based
on his base salary and the target percentage approved by the Compensation Committee for the portion of the portion of the fiscal
year prior to the Effective Date and based on one hundred (100%) percent of the Base Salary as of the Effective Date for the remainder
of the fiscal year. The Parent Board or the Compensation Committee will administer the Plan and establish performance objectives
for each year. The Executive’s Bonus will be determined based on the achievement of such performance objectives for the applicable
year, provided that the Parent Board and/or the Compensation Committee may provide discretionary bonuses to the Executive. The
timing of Bonus payments shall be in accordance with the Employer’s policies generally.
(iii) Benefits.
During the Employment Period, the Executive shall be entitled to participate in employee benefit plans generally made available
to senior executives of the Company and the Parent, subject to the terms of such plans; provided, however, that nothing contained
herein shall require the establishment or continuation of any particular plan or program. In addition, for each year during the
Employment Period and subject to Executive providing proper documentation to the Company, the Executive shall be entitled to reimbursements
for financial planning and tax preparation fees in an amount not to exceed $15,000 per calendar year. The car allowance which the
Executive has been receiving as President & Chief Operating Officer will be discontinued as of the Effective Date.
(iv) Expenses.
During the Employment Period, the Executive shall be entitled to receive reimbursement for all reasonable expenses incurred by
the Executive in performance of his duties hereunder provided that the Executive provides all necessary documentation in accordance
with any applicable Employer policy. The Employer, from time to time throughout the Employment Period, upon receipt of proper documentation,
will reimburse the Executive for (i) all reasonable relocation expenses (including without limitation expenses of
movers, storage
companies, travel and lodging expenses to find new housing and other related moving expenses, including any costs (exclusive of
purchase price) associated with the Executive’s initial purchase of a primary residence (e.g., broker’s commissions
or taxes), and including costs associated with the sale of the Executive’s existing primary residence (e.g., broker’s
commissions of up to 6% capped at $45,000 (taxable income)or taxes)) incurred in moving from the Executive’s current residence
to Evansville, Indiana (and any subsequent move required of the Executive by the Employer) and (ii) up to nine (9) months of reasonable
travel expenses for the Executive and his spouse to, and from, Evansville, Indiana and the Executive’s existing primary residence
as of the date of this Agreement in connection with the Executive’s relocation to Evansville, Indiana. In addition, the Executive
will receive a payment of one month’s salary capped at $17,000 to cover miscellaneous relocation expenses as soon as practicable
following the Effective Date. Notwithstanding the foregoing, in the event that the Executive’s employment with the Employer
terminates prior to the six-month anniversary of the Effective Date due to a termination by the Employer for Cause or by the Executive
without Good Reason, the Executive shall repay the Employer all relocation expenses previously reimbursed by the Employer pursuant
to this Section 2(c)(iv), and shall have no further entitlement to any reimbursements pursuant to this Section 2(c)(iv).
(v) Vacation
and Holidays. During the Employment Period, the Executive shall be entitled to five (5) weeks per annum of paid vacation, which
will be taken in accordance with Employer policy.
(vi) Equity
Compensation. The Executive shall be entitled to annual equity compensation awards from the Employer to the extent provided
by, and subject to the terms of, any plan, program, or agreement applicable to the Executive and subject to approval by the Compensation
Committee.
(vii) Use
of Company aircraft in accordance with Company policy and guidelines;
(d) Clawback
Provisions. Notwithstanding any other provisions in this Agreement to the contrary, any incentive-based compensation, or any
other compensation, paid to the Executive pursuant to this Agreement or any other agreement or arrangement with the Company, the
Parent, or any Affiliate of either of them, which is subject to recovery under any law, government regulation, stock exchange listing
requirement, or policy adopted by the Board or Parent Board, will be subject to such deductions and clawback as may be required
to be made pursuant to such law, government regulation, stock exchange listing requirement, or policy.
Section
3. Termination of Employment.
(a) Death
or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death. If the Executive
suffers a Disability during the Employment Period (pursuant to the definition of Disability set forth below), the Employer may
give the Executive written notice in accordance with Section 11(h) of their intention to terminate the Executive’s employment.
For purposes of this Agreement, “Disability” means a physical or mental infirmity that impairs the Executive’s
ability to perform substantially Executive’s duties for a period of at least ninety (90) days in any 365-day period. Whether
the Executive has incurred a “Disability”
shall be determined by a physician selected by the Employer or its insurers,
which physician is reasonably acceptable to the Executive (or the Executive’s legal representative).
(b) Cause.
The Executive’s employment may be terminated at any time by the Employer for Cause. For purposes of this Agreement, “Cause”
shall mean (i) the Executive’s indictment, conviction or pleading of guilty or nolo contendere to a felony or a crime of
moral turpitude; (ii) the Executive’s willful commission of a material act of dishonesty involving the Parent, the Company,
or any Affiliate; (iii) the Executive’s material breach of his obligations hereunder or any other agreement entered into
between the Executive and the Parent, the Company, or any Affiliate; (iv) willful misconduct, insubordination, or willful neglect
of or failure to perform his duties (other than neglect or failure due solely to Executive’s illness or other involuntary
mental or physical disability); (v) the Executive’s material breach of the Company’s or Parent’s policies or
procedures; or (vi) any other willful misconduct by the Executive which causes material harm to the Company, the Parent or any
Affiliate or their business reputations, including due to any adverse publicity. A termination will not be for “Cause”
under (iii), (iv), (v) or (vi) above unless the Employer shall have given the Executive at least thirty (30) days’ prior
written notice describing the alleged action(s) and then only if the Executive has not cured such actions (provided that, in the
event such breach is not curable in the reasonable judgment of the Parent Board, no notice period shall be required). For purposes
of clauses (ii) and (iv), no act or failure to act on the part of Executive shall be considered “willful” unless it
is done or omitted to be done, by the Executive in bad faith.
(c) Termination
Without Cause. The Employer may terminate the Executive’s employment hereunder without Cause at any time upon at least
thirty (30) days prior written notice.
(d) Good
Reason. The Executive’s employment may be terminated at any time by the Executive for Good Reason. For purposes of this
Agreement, “Good Reason” means the occurrence of any one of the following: (i) a material diminution in the
Executive’s duties other than as agreed in writing by the Executive; (ii) the Executive is asked to report other than directly
to the Parent Board or the Board; (iii) a material reduction by the Employer of the Executive’s Annual Base Salary
or target cash compensation in effect at the time, except in accordance with a Corporation policy generally affecting other senior
executives; (iv) failure by the Employer to comply with any material provision of this Agreement; (v) relocation of the Executive’s
primary work location for the Employer resulting in an increase of more than fifty (50) miles in the commute of the Executive when
compared with Employer’s commute immediately prior to such relocation (provided that the relocation of the Executive’s
primary work location to Evansville, Indiana in connection with Executive becoming Chief Executive Officer of the Company and the
Parent will not give rise to Good Reason); or (vi) if any successor-in-interest to the Parent or the Company fails to assume all
of the obligations of the Employer under this Agreement; provided, however, that for Executive to be able to resign for Good Reason,
Executive must, within ninety (90) days of the date the Executive becomes aware of any of the foregoing conditions, provide notice
to the Employer of the circumstances or events claimed to give rise to the applicable condition, the Employer fails to cure such
circumstances or event within thirty (30) days following such notice, and the Executive actually resigns his employment hereunder
within thirty (30) days following the Employer’s failure to cure the condition claimed to give rise to “Good Reason.”
(e) Voluntarily
Without Good Reason. The Executive may terminate his employment hereunder at any time without Good Reason upon at least thirty
(30) days’ prior written notice.
(f) Notice
of Termination. Any termination by the Employer for Cause or without Cause, or by the Executive for Good Reason or without
Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 11(i) of
this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision
so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies
the termination date. The failure by the Executive or the Employer to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Employer hereunder or
preclude the Executive or the Employer from asserting such fact or circumstance in enforcing the Executive’s or the Employer’s
rights hereunder, provided that the Employer may not treat the Executive as terminated for Cause unless the notice of termination
cites any applicable Cause event and gives the Executive the opportunity to cure, if so provided under the terms of the Cause definition.
A Notice of Termination from either the Parent or the Company, or both, shall be treated as an effective Notice of Termination
from the Employer.
(g) Date
of Termination. “Date of Termination” means the earlier of the date of the Executive’s “separation
from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
or death.
(h) No
Mitigation; No Offset. The Executive shall have no obligation to mitigate any amounts due hereunder and the amount due hereunder
shall not be offset by amounts earned from future employers.
Section 4. Obligations
of the Employer upon Termination.
(a) With
Good Reason; Other Than for Cause. If the Executive’s employment is terminated by the Employer other than for Cause (and
is not terminated due to the Executive’s death or Disability) or by the Executive for Good Reason, then, subject to Section
4(d) and Section 8, the Employer will provide the Executive with the following payments and/or benefits:
(i) The
Employer will pay to the Executive (x) in a lump sum within thirty (30) days following such termination (1) the Annual Base Salary
earned through the Date of Termination to the extent not theretofore paid, (2) any accrued but unused vacation, and (3) any incurred
but unreimbursed expenses; (y) when bonuses are otherwise paid in accordance with the applicable bonus plan, to the extent not
previously paid, any Bonus earned for any year prior to the year in which the Date of Termination occurs, to the extent that the
Executive is employed on the last day of the applicable bonus period and such Bonus shall be paid in accordance with the terms
of such plan; and (z) any amounts due under any benefit plan, program or practice or any payroll practice (the “Accrued
Obligations”);
(ii) The
Employer will pay one and a half (1.5) multiplied by the sum of (A) the Executive’s then current Annual Base Salary as of
the Date of Termination and (B) solely in the case of a termination of employment within two (2) years following a “Change
in Control” (as defined in the Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan), the Executive’s then current
target annual bonus, with such total amount payable for the period beginning on the Date of Termination until eighteen (18) months
after the Date of Termination (the “Severance Period”) in the same manner as the Executive’s Base Salary
was paid prior to the Termination Date;
(iii) The
Employer will pay the Executive a prorated Bonus for the year in which termination occurs, based on actual performance for such
year and the relative period of the year during which Executive was employed, the amount of which prorated Bonus, if any, shall
be determined and paid within the first two and one half (2 1/2) months of the year immediately following the end of the year to
which such Bonus relates and in accordance with the terms of the plan (the “Final Year Pro-Rata Bonus”); and
(iv) During
the Severance Period, the Employer will pay to the Executive each month an additional taxable amount equal to the monthly amount
of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) continuation coverage premium under
the Employer’s group medical plans as in effect from time to time for coverage of Executive and Executive’s covered
dependents at the time of Executive’s termination of employment for the period Executive is eligible for COBRA continuation
coverage, less the amount of the Executive’s portion of the premium as if Executive was an active employee; provided,
however, that, in the event the Executive becomes reemployed with another employer and is eligible to receive medical benefits
under any employer provided plan, the payment described in this Section 4(a)(iv) shall not be provided by the Employer during such
applicable period of eligibility (the “Health Payments”). Nothing herein shall limit the rights of the Executive
or any other person who is a “qualified beneficiary” (as defined by COBRA) by virtue of his or her relationship to
the Executive from electing or continuing COBRA continuation coverage to the extent provided by COBRA and the terms of the Employer’s
group medical plan.
Notwithstanding the foregoing provisions of this Section 4(a), in
the event that the Executive is a “specified employee” within the meaning of Section 409A of the Code (with such classification
to be determined in accordance with the methodology established by the applicable employer (or, if none, the default method)) (a
“Specified Employee”), cash severance amounts that are nonqualified deferred compensation (within the meaning
of Section 409A of the Code) and that would otherwise be payable under this Section 4 during the six-month period immediately following
the Date of Termination shall, to the extent necessary to avoid accelerated or additional tax under Section 409A of the Code, instead
be paid on the earlier of (x) the first business day after the date that is six (6) months following the Executive’s “separation
from service” within the meaning of Section 409A of the Code and (y) Executive’s death (the “409A Payment
Date”).
Other than as set forth in this Section 4(a), in the event of a
termination of the Executive’s employment by the Employer without Cause (and other than due to the Executive’s death
or Disability) or by the Executive for Good Reason, the Employer shall have no further obligation to the Executive under this Agreement
other than the obligation to indemnify the Executive and, if and where applicable, to provide directors and officers liability
insurance pursuant to Section 10.
(b) Death
or Disability. If the Executive’s employment is terminated by reason of the Executive’s death or Disability, then
the Employer will pay the Executive or his legal representatives the Accrued Obligations. Thereafter, the Employer shall have no
further obligation to the Executive under this Agreement other than the obligation to indemnify the Executive and, if and where
applicable, to provide directors and officers liability insurance pursuant to Section 10.
(c) Cause:
Other than for Good Reason. If the Executive’s employment is terminated by the Employer for Cause or by the Executive
without Good Reason, then the Employer shall have no further payment obligations to Executive other than for payment of the Accrued
Obligations. Thereafter, the Employer shall have no further obligation to the Executive, other than the obligation to indemnify
the Executive and, if and where applicable, to provide directors and officers liability insurance pursuant to Section 10, provided,
however, that the Employer shall have no obligation to indemnify the Executive or to cover the Executive under any applicable directors
and officers liability insurance policy for any act resulting in his termination for Cause.
(d) Separation
Agreement and General Release. The Employer’s obligations to make payments under Sections 4(a) (other than the Accrued
Obligations) will be conditioned on the Executive or his legal representatives executing and delivering a separation agreement
and general release of the Employer and Affiliates and their respective successors and assigns (and the officers and directors
of such entities) in substantially the form annexed hereto as Exhibit A (as the same may be updated from time to time by
the Employer as necessary to reflect changes in the law or otherwise in the Employer’s discretion) not later than the fifty-second
(52nd) day that follows the Date of Termination and not revoking such separation agreement and general release, if the ability
to revoke is provided therein. If the Executive complies with this Section 4(d), payments will commence no later than the sixtieth
(60th) day following the Date of Termination and shall include all accrued installments from the Date of Termination until the
payment date; provided that if the period to consider, execute, and revoke (if applicable) the separation agreement and general
release begins in one calendar year and ends in the following calendar year, such payments will not begin before the first day
of the following calendar year to the extent necessary to prevent the imposition of additional tax under Section 409A of the Code.
Section
5. Nondisclosure and Nonuse of Confidential Information.
(a) From
and after the date hereof, the Executive shall not use or disclose to any person, firm, company or other business entity (other
than any officer, director, employee, Affiliate, or representative of the Parent or the Company), except as required in connection
with the performance of the Executive’s duties under and in compliance with the terms of this Agreement and as required or
permitted by law or judicial process, any Confidential Information (as hereinafter defined) for any reason or purpose whatsoever,
nor shall the Executive make use of any of the Confidential Information for the Executive’s purposes or for the benefit of
any person or entity except the Employer. Nothing in this Agreement, however, is intended to prohibit, limit, or discourage Executive
from (i) reporting possible violations of law to, filing a charge or complaint with, or communicating with the Equal Employment
Opportunity Commission, National Labor Relations Board, the Securities and Exchange Commission, or any other federal, state, or
local agency (“Government Agencies”), without notice to the Employer, or (ii) participating in an investigation
or proceeding conducted by any Government Agencies, including providing documents or other information, without notice to the Employer.
(b) For
purposes of this Agreement, “Confidential Information” shall mean (i) the Intellectual Property Rights (as hereinafter
defined) of the Parent, the Company, or any Affiliates (collectively, the “Company Group”), (ii) all other information
of a proprietary nature relating to the Company Group, or the business or assets of the Company Group, including, without limitation,
books, records, customer and registered user lists, vendor lists, supplier lists, distribution channels, pricing information, cost
information, marketing plans, strategies, forecasts, financial statements, budgets and projections and (iii) any confidential and
proprietary information in the possession of the Company Group or any customer of the Company Group or any other third party other
than information which is generally within the public domain at the time of the receipt thereof by Executive or at the time of
use or disclosure of such Confidential Information by Executive other than as a result of the breach by Executive of this Agreement.
(c) As
used herein, the term “Intellectual Property Rights” means all industrial and intellectual property rights,
including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service
marks, service mark applications, copyrights, copyright applications, know-how, certificates of public convenience and necessity,
franchises, licenses, trade secrets, proprietary processes and formulae, inventions, development tools, marketing materials, trade
dress, logos and designs and all documentation and media constituting, describing or relating to the above, including, without
limitation, manuals, memoranda and records.
(d) Pursuant
to the Defend Trade Secrets Act of 2016, Executive shall not be held criminally or civilly liable under any federal or state trade
secret law for disclosing a trade secret as long as the disclosure is made: (i) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected
violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, as long as such filing is made
under seal. In the event a disclosure is made, and the Executive files a lawsuit against the Employer alleging that the Employer
retaliated against Executive because of such disclosure, the Executive may disclose the relevant trade secret to his or her attorney
and may use the same in the court proceeding only if (i) Executive ensures that any court filing that includes the trade secret
at issue is made under seal; and (ii) Executive does not otherwise disclose the trade secret except as required by court order.
Section
6. Inventions and Assignment.
(a) Executive
agrees that all discoveries, creations, inventions, improvements, innovations, designs, and software, whether patentable or not
(including all data and records), which Executive creates, invents, discovers, originates or conceives, solely or jointly with
others, during the term of his or her engagement by the Company Group, and (i) which were conceived or developed while he or she
was on the Company Group’s premises or during his or her working hours; or (ii) which were conceived or developed at the
Company Group’s expense; or (iii) which in any way relate to or are or may be useful in connection with the actual business
for the Company Group or business being developed by the Company Group, will be called “Inventions” and will
be and will remain the sole and exclusive property of the Company Group.
(b) Executive
agrees to disclose promptly and fully to the Employer (to one of the Employer’s directors or officers) each Invention. Executive
agrees to, and does hereby, assign to the Company Group his or her entire right, title and interest in and to all of the Inventions
and any related U.S. or foreign patents and patent applications. Executive agrees to promptly take whatever steps and do whatever
acts that the Company Group may request to convey to itself or perfect in itself the exclusive ownership of such Inventions and
Executive will help the Company Group in obtaining, defending and enforcing its rights in the Inventions, including, but not limited
to, assisting the Company Group, or its nominees, in filing and prosecuting applications to claim such Inventions. The Company
Group will bear all expenses it authorizes to be incurred in connection with such activity.
Section
7. Non-Solicitation; Non-Compete.
(a) Executive
agrees that Executive will not, at any time during the employer/employee relationship between the Employer and Executive and for
two (2) years after the Executive’s separation of employment from the Employer (i) directly or indirectly engage in, represent
in any way, or be connected with, any Competing Business (as defined below) directly competing with the business of the Employer
within the state in which Executive is employed or any other state of the United States or any country other than the United States
in which the Company Group is doing business, whether such engagement shall be as an officer, director, owner, employee, partner,
affiliate or other participant in any Competing Business, (ii) assist others in engaging in any Competing Business in the manner
described in clause (i) above, (iii) induce or solicit individuals who are, or were at any time in the twelve (12) months preceding
the Determination Date, employees of the Company Group to terminate their employment with the Company Group or to engage in any
Competing Business, or hire, or induce or solicit (or assist others to hire or induce or solicit) the hiring of, individuals then
employed, or employed at any time in the preceding twelve (12) months, by the Company Group or (iv) induce any entity or person
with which the Company Group has a business relationship to terminate or alter such business relationship. As used herein, “Competing
Business” shall mean any business involving the sale of products in any city or county in any state of the United States
or any country other than the United States if such business or the products sold by it are competitive, directly or indirectly,
as of the Determination Date with (A) the business of the Company Group, (B) any of the products manufactured, sold or distributed
by the Company Group or (C) any products or business being developed or conducted by the Company Group. As used herein, the “Determination
Date” is, during the Executive’s employment, the date that compliance with this Section is being determined and
after termination of employment, means the Date of Termination.
(b) The
Executive understands that the foregoing restrictions may limit Executive’s ability to earn a livelihood in a business similar
to the business of the Company Group, but Executive nevertheless believes that Executive has received and will receive sufficient
consideration and other benefits as an employee of the Employer and as otherwise provided hereunder to justify clearly such restrictions
which, in any event (given Executive’s education, skills and ability), Executive does not believe would prevent Executive
from earning a living.
Section
8. Severance Payments Ceasing.
In addition to the foregoing, and not in any way
in limitation thereof, or in limitation of any right or remedy otherwise available to the Employer, the Executive agrees that any
violation of the covenants in Sections 5 through 7, as reasonably determined by the Parent Board, will result in the immediate
forfeiture of any remaining payment that otherwise is or may become due under Section 4, if applicable. The Executive further agrees
that should the Executive breach any of the
covenants contained in Sections 5 through 7 of this Agreement, as reasonably determined
by the Parent Board, the Executive shall repay to the Employer any amounts previously received by the Executive pursuant to Section
4 that are attributable to that portion of the payments paid for the period during which the Executive was in breach of any of
the covenants.
Section 9. Executive’s
Representations, Warranties and Covenants.
The Executive hereby represents and warrants to
the Employer that:
(a) The
Executive has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated
hereby, and this Agreement has been duly executed by the Executive;
(b) The
execution, delivery and performance of this Agreement by the Executive does not and will not, with or without notice or the passage
of time, conflict with, breach, violate or cause a default under any agreement, contract or instrument to which the Executive is
a party or any judgment, order or decree to which the Executive is subject;
(c) The
Executive is not a party to or bound by any employment agreement, consulting agreement, non-compete agreement, confidentiality
agreement or similar agreement with any other person; and
(d) Upon
the execution and delivery of this Agreement by the Company, the Parent, and the Executive, this Agreement will be a legal, valid
and binding obligation of the Executive, enforceable in accordance with its terms.
Section
10. Indemnification.
The Employer shall indemnify the Executive to
the maximum extent permitted under the General Corporate Law of Delaware for acts taken within the scope of his employment and
his service as an officer or director of the Company, Parent or any Affiliate or as a fiduciary of a benefit plan of any of the
foregoing. To the extent that the Employer or any of the other aforesaid entities for which the Executive is performing services
as either an officer or director obtains coverage under a director and officer indemnification policy, the Executive will be entitled
to such coverage on a basis that is no less favorable than the coverage provided to any other officer or director of the Employer
or any of such other aforesaid entities.
Section
11. General Provisions.
(a) Severability.
It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable
under any present or future law, and if the rights and obligations of any party under this Agreement will not be materially and
adversely affected thereby, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction; furthermore,
in lieu of such invalid or unenforceable
provision there will be added automatically as a part of this Agreement, a legal, valid and enforceable provision as similar in
terms to such invalid or
unenforceable provision as may be possible. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction,
it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other jurisdiction.
(b) Entire
Agreement. This Agreement embodies the complete agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written
or oral, including, without limitation that certain employment agreement between the Company and the Executive dated April 3, 2007,
as amended; provided, however, that nothing herein shall supersede the terms and conditions of any previously granted equity incentives,
including without limitation, stock options granted to the Executive.
(c) Counterparts.
This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together
constitute one and the same agreement.
(d) Successors
and Assigns.
(i) This
Agreement is personal to the Executive and without the prior written consent of the Company and the Parent shall not be assignable
by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and
be enforceable by the Executive’s legal representatives.
(ii) This
Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns and the Parent and its successors
and assigns. As used in this Agreement, “Company” or “Parent” as applicable, shall mean the Company or
the Parent, as applicable, as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
(e) Apportionment
of Obligations. Except as the provisions of this Agreement expressly provide otherwise, the obligations for the payment of
the amounts otherwise payable pursuant to this Agreement shall be apportioned between the Company and the Parent as they may agree
from time to time in their sole discretion.
(f) Governing
Law; Forum. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF INDIANA OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF INDIANA TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL
LAWS OF THE STATE OF INDIANA WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S
CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY. The Parties agree
that the appropriate state or federal court located in or embracing Evansville, Indiana shall have jurisdiction of any case or
controversy arising under or in connection with this Agreement and shall be the exclusive forum in
which to adjudicate such case
or controversy. The Parties hereby consent to the jurisdiction of such courts
(g) Remedies.
Each of the parties to this Agreement and any such person or entity granted rights hereunder whether or not such person or entity
is a signatory hereto shall be entitled to enforce its rights under this Agreement specifically to recover damages and costs for
any breach of any provision of this Agreement and to exercise all other rights existing in its favor. The Executive further acknowledges
and agrees that (x) the Executive’s breach of the provisions of Sections 5, 6, or 7 of this Agreement will cause the Employer
irreparable harm, which cannot be adequately compensated by money damages, and (y) if the Employer elects to prevent the Executive
from breaching such provisions by obtaining an injunction against the Executive, there is a reasonable probability of the Employer’s
eventual success on the merits. The Executive consents and agrees that if the Executive commits any such breach or threatens to
commit any breach, the Employer shall be entitled to temporary and permanent injunctive relief from a court of competent jurisdiction,
without posting any bond or other security and without the necessity of proof of actual damage, in addition to, and not in lieu
of, such other remedies as may be available to the Employer for such breach, including the recovery of money damages. Each party
shall be responsible for paying its own attorneys’ fees, costs and other expenses pertaining to any judgment or verdict.
(h) Amendment
and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the Company,
the Parent, and the Executive and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall
be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Agreement or any provision
hereof.
(i) Notices.
Any notice provided for in this Agreement must be in writing and must be either personally delivered, transmitted via telecopier,
mailed by first class mail (postage prepaid and return receipt requested), sent by reputable overnight courier service (charges
prepaid) to the recipient at the address below indicated, or at such other address or to the attention of such other person as
the recipient party has specified, by prior written notice to the sending party, or, except for Notice of Employment Termination
and/or notice of a contract performance, or breach issue, notices sent by email followed by computer-generated confirmation(s)
that the email was both sent and received. Notices will be deemed to have been given hereunder and received when delivered personally,
when received if transmitted via telecopier, five (5) days after deposit in the U.S. mail and one (1) day after deposit with a
reputable overnight courier service.
If to the Employer, to:
Berry Plastics Corporation
101 Oakley Street
Evansville, Indiana 47710
| Attention: | General Counsel |
with a copy (which shall not constitute notice)
to:
Bryan Cave LLP
1201 West Peachtree St., 14th
Floor
Atlanta, Georgia 30309
| Attention: | Louis C. Spelios |
If to the Executive, to the Executive’s
address on the Company’s records. A notice by either the Parent or the Company shall be effective for the Employer.
(j) Section
409A.
(i) This
Agreement is intended to comply with the requirements of Section 409A of the Code or an exemption or exclusion therefrom and, with
respect to amounts that are subject to Section 409A of the Code, shall in all respects be administered in accordance with Section
409A of the Code. Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A of the
Code. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement.
(ii) All
reimbursements and in-kind benefits provided under this Agreement that constitute nonqualified deferred compensation within the
meaning of Section 409A of the Code shall be made or provided in accordance with the requirements of Section 409A of the Code,
including, without limitation, that (A) in no event shall reimbursements by the Employer under this Agreement be made later than
the end of the calendar year next following the calendar year in which the applicable fees and expenses were incurred, provided,
that the Executive shall have submitted an invoice for such fees and expenses at least ten (10) days before the end of the calendar
year next following the calendar year in which such fees and expenses were incurred or sooner to the extent required by an Employment
Policy, (B) the amount of in-kind benefits that the Employer is obligated to pay or provide in any given calendar year (other than
medical reimbursements described in Treas. Regs. § 1.409A-3(i)(1)(iv)(B)) shall not affect the in-kind benefits that the Employer
is obligated to pay or provide in any other calendar year, (C) the Executive’s right to have the Employer pay or provide
such reimbursements and in-kind benefits may not be liquidated or exchanged for any other benefit, and (D) in no event shall the
Employer’s obligations to make such reimbursements or to provide such in-kind benefits apply later than the Executive’s
remaining lifetime (or if longer, through the twentieth (20th) anniversary of the Effective Date).
(iii) To
the extent permissible under applicable law, the Employer may in consultation with the Executive but without Executive’s
consent, modify the Agreement, in the least restrictive manner necessary and without any material diminution in the value of the
payments to the Executive, in order to cause the provisions of the Agreement to comply with the requirements of Section 409A of
the Code, so as to avoid the imposition of taxes and penalties on the Executive pursuant to Section 409A of the Code.
(k) Sections
280G and 4999. Notwithstanding anything in this Agreement or in any other agreement between the Executive and the Parent, the
Company or any Affiliate to the contrary, if the total payments to be paid to the Executive hereunder, along with any other payments
to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Employer shall
reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only
if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination
of the excise tax and the aggregate after-tax payments to be received
by the Executive will be made by the Employer. If payments
are to be reduced, the payments made latest in time will be reduced first and if payments are to be made at the same time, non-cash
payments will be reduced before cash payments.
(l) Withholding.
The Employer may withhold from any amounts payable or benefits to be provided to the Executive under this Employment Agreement
or otherwise all Federal, state, city or other taxes and other amounts that the Employer may reasonably determine are required
to be withheld pursuant to any applicable law or regulation.
(m) Survival
of Representations, Warranties and Agreements. All representations, warranties and agreements contained herein shall survive
the consummation of the transactions contemplated hereby indefinitely.
(n) Descriptive
Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(o) Construction.
Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be
deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates. The language used
in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
(p) Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(q) Legal
Fees. The Employer shall pay up to $11,750 for the reasonable legal fees and disbursements incurred by the Executive in negotiating
this Agreement and related documents in calendar year 2016 and $3,250 for the reasonable legal fees and disbursements incurred
by the Executive in negotiating this Agreement and related documents in calendar year 2017.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first written above.
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BERRY PLASTICS CORPORATION |
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By: |
/s/ Edward Stratton |
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Name: |
Edward Stratton |
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Title: |
Executive Vice President – Human |
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Resources |
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BERRY PLASTICS GROUP |
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By: |
/s/ Edward Stratton |
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Name: |
Edward Stratton |
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Title: |
Executive Vice President – Human |
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Resources |
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THOMAS E. SALMON |
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Signature: |
/s/ Thomas E. Salmon |
Exhibit A
Form of Waiver and Release
Full and Final Release. In exchange
for the consideration provided by Berry Plastics Corporation (“Berry” or “the Company”), Employee, for
Employee personally and Employee’s representatives, heirs, executors, administrators, successors and assigns, fully, finally
and forever releases and discharges the Company and its affiliates, as well as their respective successors, assigns, officers,
owners, directors, agents, representatives, attorneys, and employees (all of whom are referred to throughout this Release as the
“Released Parties”), of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses,
of any and every nature whatsoever, individually or as part of a group action, known or unknown, as a result of actions or omissions
occurring through the date Employee signs this Waiver and Release (“Release”). Specifically included in this Release
are, among other things, any and all claims of alleged refusal to accommodate or unlawful discrimination prohibited by Title VII
of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the
National Labor Relations Act (NLRA), [Massachusetts add: the Massachusetts Fair Employment Practices Act,][New Jersey
add: the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination,][West Virginia add: the
West Virginia Human Rights Act] or any other federal, state or local statute, rule, ordinance, or regulation, as well as
any claims under common law for tort, contract, or wrongful discharge. [California add: Employee is releasing all rights
under section 1542 of the California Civil Code. Section 1542 provides as follows:
A general release does not extend
to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with the debtor.
Employee consciously intends these consequences
even as to claims for damages that may exist as of the date this Release is executed that Employee does not know exists and which
if known, would materially affect Employee’s decision to execute this Release, regardless of whether the lack of knowledge
is the result of ignorance, oversight, error, negligence or any other cause.]
[Montana: Employee is releasing all
rights under Montana Code Annotated Section 28-1-1602, which provides:
A general release does not extend
to claims that the creditor does not know or suspect to exist in the creditor's favor at the time of executing the release, which,
if known by the creditor, must have materially affected the creditor's settlement with the debtor.]
[North Dakota add: Employee expressly
waives any and all rights that Employee may have under any state or local statute, executive order, regulation, common law and/or
public policy relating to unknown claims, including but not limited to North Dakota Century Code Section 9-13-2.]
[South Dakota add: Employee expressly
waives any and all rights that Employee may have under any state or local statute, executive order, regulation, common law and/or
public policy relating to unknown claims, including but not limited to South Dakota Codified Laws Section 20-7-11.]
No Interference with Rights. Nothing
in this Agreement is intended to waive claims or recovery of an award (i) for unemployment or workers’ compensation benefits,
(ii) for vested rights under ERISA-covered employee benefit plans as applicable on the date Employee signs this Agreement, (iii)
that may arise after Employee signs this Agreement, (iv) for reimbursement of expenses under the Company’s expense reimbursement
policies, (v) for information provided to the Securities and Exchange Commission (“SEC”), or (vi) which cannot be released
by private agreement. In addition, nothing in this Agreement is intended to prohibit, limit, or discourage Employee from (i) exercising
rights under Section 7 of the NLRA to engage in protected, concerted activity with other employees, (ii) reporting possible violations
of law to, filing a charge or complaint with, or communicating with the Equal Employment Opportunity Commission, National Labor
Relations Board, the SEC, or any other federal, state or local agency (collectively “Government Agencies”), without
notice to the Company, or (iii) participating in an investigation or proceeding conducted by any Government Agencies, including
providing documents or other information, without notice to the Company. By signing this Agreement, however, Employee is waiving
rights to individual relief (including any money damages, reinstatement or other legal or equitable relief) in any charge, complaint,
or lawsuit or other proceeding brought by Employee or on Employee’s behalf by any third party, except where such a waiver
of individual relief is prohibited by applicable law, or is otherwise expressly allowed by this Agreement.
Employee Acknowledgments. Employee acknowledges
(i) receipt of all compensation and benefits due through Employee’s termination date as a result of services performed for
the Company with the receipt of a final paycheck except as provided in this Release; (ii) Employee has reported to the Company
any and all work-related injuries incurred during employment; (iii) the Company properly provided any leave of absence because
of Employee’s or a family member’s health condition and Employee has not been subjected to any improper treatment,
conduct or actions due to a request for or taking such leave; (iv) Employee has provided the Company with written notice of any
and all concerns regarding suspected ethical and compliance issues or violations on the part of the Company or any released person
or entity, and (v) Employee has not filed any complaints, claims, or actions against the Company or any released person or entity.
Any concerns which Employee has reported have been investigated and resolved. The provisions of this Release are severable, and
if any part of this Release is found by a court of law to be unenforceable, the remainder of this Release will continue to be valid
and effective.
[UNDER 40] Advice of Counsel, Consideration
Periods, Other Information. The Company advises Employee to consult with an attorney prior to signing this Release. [West
Virginia add: The toll free number for the West Virginia Bar Association is 866.989.8227.] Employee has 21 days to consider
whether to sign this Release from the date Employee receives this Release and any attached information (“Consideration Period”).
Employee must return this signed Release to the Company’s representative set forth below within the Consideration Period
but not prior to Employee’s date of termination. If Employee signs and returns this Release before the end of the Consideration
Period, it is because Employee freely chose to do so after carefully considering its terms. This Release will become effective
on the day Employee signs it. Any modification or alteration of any terms of this Release by Employee voids this Release in its
entirety. Employee agrees with the Company that changes, whether material or immaterial, do not restart the running
of the Consideration
Period. [Minnesota add: Additionally, Employee shall have fifteen days from the date the Employee signs this Release to
revoke it by delivering a written notice of revocation within the fifteen-day revocation period to the same person to whom Employee
returned this Release.]
[OVER 40 or in West Virginia] Advice of
Counsel, Consideration and Revocation Periods, Other Information. The Company advises Employee to consult with an attorney
prior to signing this Release. [West Virginia add: The toll free number for the West Virginia Bar Association is 866.989.8227.]
Employee has [21 if non-RIF or 45 if RIF] days to consider whether to sign this Release from the date Employee receives this Release
and any attached information (“Consideration Period”). Employee must return this signed Release to the Company’s
representative set forth below within the Consideration Period but not prior to Employee’s date of termination. If Employee
signs and returns this Release before the end of the Consideration Period, it is because Employee freely chose to do so after carefully
considering its terms. Additionally, Employee shall have seven [Minnesota replace with: fifteen] days from the date the
Employee signs this Release to revoke it by delivering a written notice of revocation within the seven [Minnesota replace with:
fifteen]-day revocation period to the same person as whom Employee returned this Release. If the revocation period expires
on a weekend or holiday, Employee will have until the end of the next business day to revoke. This Release will become effective
on the eighth [Minnesota replace with: sixteenth] day after Employee signs it provided Employee does not revoke the Release.
Any modification or alteration of any terms of this Release by Employee voids the Release in its entirety. [If RIF or voluntary
termination program add: If Employee’s termination is part of an employment termination program, the Company has attached
information regarding the class, unit, or group of individuals covered by the program; the applicable eligibility factors [West
Virginia add: the method and/or factors used or considered in arriving at the amount of consideration offered] and time limits;
and a list of the job titles and ages of all individuals eligible or selected for the program as well as those who are not.] Employee
agrees with the Company that changes, whether material or immaterial, do not restart the running of the Consideration Period.
Transfer/Rehire or Breach of Agreement. If Employee accepts
a transfer or is rehired by the Company (including any affiliate) as an employee, consultant or independent contractor or breaches
any of Employee’s obligations under this Agreement, the Company may opt to (i) terminate any remaining severance payments
that Employee has not yet received during the Severance Period or (ii) continue making the severance payments and seek to enforce
the obligation that has been breached. In either event, Employee is guaranteed a minimum payment of $1000 under all circumstances
as consideration for the release of claims in this Agreement.
In exchange for the promises
contained in this Release, the Company promises to provide the benefits specified in Employee’s Employment Agreement, as
amended.
| Date: |
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Name of Company Representative
Address
Email
Fax |
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Signature |
Employee has read and understood
this Release, signs this Release waiving valuable rights, and acknowledges that this Release is final and binding.
| Date: |
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Name Printed |
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Signature |
