Form 8-K

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qt2j0KL5CJsUt6zdhjXP82OXSVgQ4FNNYhV2cyx3WybUdjo0K4PVzhsAd5vFtax6 lagDs5HQDRcR1lDMWSMVyw== 0001193125-11-003716.txt : 20110107 0001193125-11-003716.hdr.sgml : 20110107 20110107160900 ACCESSION NUMBER: 0001193125-11-003716 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20110105 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20110107 DATE AS OF CHANGE: 20110107 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JARDEN CORP CENTRAL INDEX KEY: 0000895655 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 351828377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13665 FILM NUMBER: 11517654 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 914 967 9400 MAIL ADDRESS: STREET 1: 555 THEODORE FREMD STREET 2: AVE CITY: RYE STATE: NY ZIP: 10580 8-K 1 d8k.htm FORM 8-K Form 8-K

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) January 5, 2011

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.)


555 Theodore Fremd Avenue, Rye, New York		10580
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code (914) 967-9400

(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:

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.

On January 5, 2011, Jarden Corporation (the “Company”) entered into amended and restated employment agreements with each of Messrs. Franklin, Ashken and Lillie, primarily to (i) make technical amendments to their prior employment agreements in order to comply with Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”), by providing that Messrs. Franklin, Ashken and Lillie are no longer entitled to receive certain payments or benefits upon a termination of their employment in certain circumstances in which they would otherwise have been entitled to receive such payments or benefits, and (ii) to amend the number of shares of restricted stock that Mr. Lillie is entitled to receive in his annual restricted stock award. See Item 5.02 below, which is incorporated into this Item 1.01 by reference for a description of all such employment agreements.

On January 5, 2011, the Company also entered into restricted stock agreements with each of Messrs. Franklin, Ashken, and Lillie. See Item 5.02 below, which is incorporated into this Item 1.01 by reference, for a description of all such restricted stock agreements.

Item 5.02

Departure of Directors or Principal Officers; Election of Directors; Appointment of Officers; Compensatory Arrangements for Certain Officers.

(e)

Employment Agreements

Martin E. Franklin Employment Agreement

On January 5, 2011, Company entered into a Fourth Amended and Restated Employment Agreement (the “Franklin Employment Agreement”) with Martin E. Franklin, the Company’s Chairman and Chief Executive Officer. The Employment Agreement amends and restates the Third Amended and Restated Employment Agreement, dated May 24, 2007, as amended by the First Amendment to Third Amended and Restated Employment Agreement, dated as of December 16, 2009, by and between the Company and Mr. Franklin.

Pursuant to the Franklin Employment Agreement, Mr. Franklin’s term with the Company continues through December 31, 2012. Pursuant to the Franklin Employment Agreement, (a) Mr. Franklin’s annual base salary is $2,034,728, subject to an annual increase at least equal to the change in Consumer Price Index, (b) Mr. Franklin will be eligible for a bonus of 50% of his base salary in each year the Company achieves its budgeted earnings per share target as approved by the Board of Directors or 100% of his base salary in each year the Company achieves earnings per equal to the performance target set by the Compensation Committee of the Board of Directors (the “Committee”) for payment of maximum bonus to the Company’s employees generally, (c) Mr. Franklin is eligible to receive a performance-based discretionary bonus of up to 100% of his base salary, to be determined in the discretion of either the Board of Directors or its Committee, and (d) on the date hereof and January 1, 2012, Mr. Franklin shall be entitled to receive an annual grant of 230,000 shares and 300,000 shares of restricted stock, respectively (the “Restricted Stock”), on the terms outlined below.

satisfaction of the conditions and the lapsing of the restrictions on each grant of Restricted Stock set forth in the Franklin Employment Agreement, Mr. Franklin shall be entitled to sell only 20% (but not more than 20%) of such vested shares in any calendar year ending prior to January 1, 2012, provided that Mr. Franklin shall be entitled to sell all such vested shares at any time on or after January 2012. The foregoing 20% limitation shall lapse upon a Change of Control of the Company. The number of shares granted and the target share price will be adjusted for changes in the common stock as outlined in the Company’s 2009 Stock Incentive Plan (the “Plan”) or as otherwise mutually agreed in writing between the parties. In the event that the Company does not have a stock incentive plan in place on or prior to January 1 of each year with enough shares to issue to Mr. Franklin, the Company shall grant to Mr. Franklin such number of shares of Restricted Stock that are available under the Company’s stock incentive plans, and in lieu of any shares of Restricted Stock not granted (the “Remaining Stock”), Mr. Franklin shall receive a mutually acceptable performance based compensation package having a value equivalent to the value of the shares of Remaining Stock not issued to Mr. Franklin as determined in good faith by the Committee. The terms of the Restricted Stock will be set forth in a restricted stock award agreement.

The Franklin Employment Agreement also entitles Mr. Franklin to participate in the medical, insurance and other fringe benefit plans or policies the Company may make available to, or have in effect for, its personnel with commensurate duties from time to time. The Franklin Employment Agreement also provides for certain other ancillary benefits, including the reimbursement of all reasonable business expenses and, for security purposes, use at the Company’s expense private aircraft transportation for all travel. The Company shall bear expenses for Mr. Franklin’s personal use of private aircraft that does not exceed 75 hours in any calendar year. In addition, the agreement requires the Company to provide Mr. Franklin with $10 million of life insurance. Mr. Franklin shall also be entitled to, if for any reason Mr. Franklin shall not be covered by a health insurance policy of the Company, an annual medical, dental, vision care and other health care allowance of up to $30,000 for unreimbursed expense incurred by Mr. Franklin or any of his immediate family members.

In the event Mr. Franklin’s employment is terminated by the Company without “cause” (as such term is defined in the Franklin Employment Agreement), by Mr. Franklin for “good reason” (as such term is defined in the Franklin Employment Agreement) or upon “death”, Mr. Franklin will be entitled to (a) three times (two times in the case of termination due to death) base salary, (b) three times (two times in the case of termination due to death) the average annual bonus paid over the preceding two fiscal years, (c) the accrued annual bonus through the date of termination; provided, however, that if Mr. Franklin is terminated without “cause” or there is a termination by Mr. Franklin for “good reason”, the amounts described in clause (c) above shall be payable only to the extent that the applicable performance targets for the year of termination are actually achieved, (d) the continuation of health insurance and other benefits for the period for which he could elect COBRA continuation coverage under the Company’s health benefit plans, (e) except in the case of death, a cash payment in an amount to be the actuarially determined value of the cost of coverage under the Company’s medical, dental and vision care plans for a period equal to the difference between 36 months and the period for which he could elect COBRA continuation converge under such plans, (f) continued personal use of the Company’s owned or leased aircraft, not to exceed 75 hours in any calendar year at the Company’s sole expense until the third anniversary of such termination, (g) the full vesting of any benefits accrued under employee option, pension, retirement, savings and deferred compensation plans of the Company, and (h)(x) except in the case of death, each of the annual restricted stock awards

pursuant to the employment agreement shall be granted, notwithstanding whether the scheduled grant date has been achieved and (y) any and all unvested stock options, restricted stock and other equity or equity-based awards shall immediately vest; provided, however, that if Mr. Franklin is terminated without “cause” or a termination by Mr. Franklin for “good reason”, the preceding subclauses (h)(x) and (y) above shall not apply, except that all unvested stock options shall immediately vest as of the end of the employment period. In addition, the Franklin Employment Agreement may be terminated at the Company’s option for “cause” (as such term is defined in the Franklin Employment Agreement).

If Mr. Franklin is terminated by the Company for “cause”, leaves voluntarily due to termination without good reason or due to death or disability, Mr. Franklin will surrender all unvested Restricted Stock issuable pursuant to the Franklin Employment Agreement and will forfeit rights to any and all future grants pursuant to such agreement.

The Franklin Employment Agreement provides that if it shall be determined that any payment, distribution or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to Mr. Franklin (whether paid or payable or distributed or distributable) pursuant to the terms of his employment agreement or otherwise (a “Payment”) would be subject, in whole or in part, to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Mr. Franklin shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by Mr. Franklin after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment.

The Franklin Employment Agreement also contains a noncompetition covenant and nonsolicitation provisions (relating to the Company’s employees and customers) effective during the term of his employment and during the greater of (i) a period of three years after any termination of Mr. Franklin’s employment, or (ii) any period thereafter during which Mr. Franklin continues to receive benefits under the Franklin Employment Agreement, other than in cases of a termination by the Company without “cause”, by Mr. Franklin with “good reason”, or if Mr. Franklin’s employment is not renewed.

A copy of the Franklin Employment Agreement is attached to this report as Exhibit 10.1 and is incorporated herein by reference as though fully set forth herein. The foregoing summary description of the Franklin Employment Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Franklin Employment Agreement.

Ian G.H. Ashken Employment Agreement

On January 5, 2011, the Company entered into a Fourth Amended and Restated Employment Agreement (the “Ashken Employment Agreement”) with Ian G.H. Ashken, the Company’s Vice Chairman and Chief Financial Officer. The Ashken Employment Agreement amends and restates the Third Amended and Restated Employment Agreement, dated May 24, 2007, as amended by the First Amendment to Third Amended and Restated Employment Agreement, dated as of December 16, 2009, by and between the Company and Mr. Ashken.

Pursuant to the Ashken Employment Agreement, Mr. Ashken’s term with the Company continues through December 31, 2012. Pursuant to the Ashken Employment Agreement, (a) Mr. Ashken’s annual base salary is $939,105, subject to an annual increase at least equal to the change in Consumer Price Index, (b) Mr. Ashken will be eligible for a bonus of 50% of his base salary in each year the Company achieves its budgeted earnings per share target as approved by the Board of Directors or 100% of his base salary in each year the Company achieves earnings per equal to the performance target set by the Committee for payment of maximum bonus to the Company’s employees generally, (c) Mr. Ashken is eligible to receive a performance-based discretionary bonus of up to 100% of his base salary, to be determined in the discretion of either the Board of Directors or its Committee, and (d) on the date hereof and January 1, 2012, Mr. Ashken shall be entitled to receive an annual grant of 95,000 shares and 135,000 shares of restricted stock, respectively (the “Restricted Stock”), on the terms outlined below.

The restrictions on the award of Restricted Stock will lapse based on achievement of a target appreciation in the stock price of the common stock of the Company set by the Committee at the time of the grant as follows: (i) the vesting target shall be achieved on the date that the average closing price of the Company’s common stock for any 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 Committee (up to certain maximums set forth in the Ashken Employment Agreement), or (ii) the date there is a Change of Control (as defined in the Ashken Employment Agreement) of the Company prior to achievement of the vesting targets for each annual grant. Upon satisfaction of the conditions and the lapsing of the restrictions on each grant of Restricted Stock set forth in the Ashken Employment Agreement, Mr. Ashken shall be entitled to sell only 20% (but not more than 20%) of such vested shares in any calendar year ending prior to January 1, 2012, provided that Mr. Ashken shall be entitled to sell all such vested shares at any time on or after January 2012. The foregoing 20% limitation shall lapse upon a Change of Control of the Company. The number of shares granted and the target share price will be adjusted for changes in the common stock as outlined in the Plan or as otherwise mutually agreed in writing between the parties. In the event that the Company does not have a stock incentive plan in place on or prior to January 1 of each year with enough shares to issue to Mr. Ashken, the Company shall grant to Mr. Ashken such number of shares of Restricted Stock that are available under the Company’s stock incentive plans, and in lieu of any shares of Restricted Stock not granted (the “Remaining Stock”), Mr. Ashken shall receive a mutually acceptable performance based compensation package having a value equivalent to the value of the shares of Remaining Stock not issued to Mr. Ashken as determined in good faith by the Committee or Board of Directors. The terms of the Restricted Stock will be set forth in a restricted stock award agreement.

The Ashken Employment Agreement also entitles Mr. Ashken to participate in the medical, insurance and other fringe benefit plans or policies the Company may make available to, or have in effect for, its personnel with commensurate duties from time to time. The Ashken Employment Agreement also provides for certain other ancillary benefits, including the reimbursement of all reasonable business expenses and the use for his personal use any airplanes that the Company owns or is entitled to use as a result of lease, pooling, sharing or other agreements, provided that Mr. Ashken shall either prepay or pay directly, on or prior to such use, the actual (if determinable) or estimated direct cost of such use. In addition, the agreement requires the Company to provide Mr. Ashken with $6 million of life insurance.

In the event Mr. Ashken’s employment is terminated by the Company without “cause” (as such term is defined in the Ashken Employment Agreement) by Mr. Ashken for “good reason” (as such term is defined in the Ashken Employment Agreement) or upon “death”, Mr. Ashken will be entitled to (a) three times (two times in the case of termination due to death) base salary, (b) three times (two times in the case of termination due to death) the average annual bonus paid over the preceding two fiscal years, (c) the accrued annual bonus through the date of termination; provided, however, that if Mr. Ashken is terminated without “cause” or there is a termination by Mr. Ashken for “good reason”, the amounts described in clause (c) above shall be payable only to the extent that the applicable performance targets for the year of termination are actually achieved, (d) the continuation of health insurance and other benefits for the period for which he could elect COBRA continuation coverage under the Company’s health benefit plans, (e) except in the case of death, a cash payment in an amount to be the actuarially determined value of the cost of coverage under the Company’s medical, dental and vision care plans for a period equal to the difference between 36 months and the period for which he could elect COBRA continuation converge under such plans, (f) the full vesting of any benefits accrued under employee option, pension, retirement, savings and deferred compensation plans of the Company, and (g)(x) except in the case of death, each of the annual restricted stock awards pursuant to the employment agreement shall be granted, notwithstanding whether the scheduled grant date has been achieved and (y) any and all unvested stock options, restricted stock and other equity or equity-based awards shall immediately vest; provided, however, that if Mr. Ashken is terminated without “cause” or a termination by Mr. Ashken for “good reason”, the preceding subclauses (g)(x) and (y) above shall not apply, except that all unvested stock options shall immediately vest as of the end of the employment period. In addition, the Ashken Employment Agreement may be terminated at the Company’s option for “cause” (as such term is defined in the Ashken Employment Agreement).

If Mr. Ashken is terminated by the Company for “cause”, leaves voluntarily due to termination without “good reason” or due to death or disability, Mr. Ashken will surrender all unvested Restricted Stock issuable pursuant to the Ashken Employment Agreement and will forfeit rights to any and all future grants pursuant to such agreement.

The Ashken Employment Agreement provides that if it shall be determined that any payment, distribution or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to Mr. Ashken (whether paid or payable or distributed or distributable) pursuant to the terms of his employment agreement or otherwise (a “Payment”) would be subject, in whole or in part, to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Mr. Ashken shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by Mr. Ashken after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment.

The Ashken Employment Agreement also contains a noncompetition covenant and nonsolicitation provisions (relating to the Company’s employees and customers) effective during the term of his employment and during the greater of (i) a period of three years after any termination of Mr. Ashken’s employment, or (ii) any period thereafter during which Mr. Ashken

continues to receive benefits under the Ashken Employment Agreement, other than in cases of a termination by the Company without “cause”, by Mr. Ashken with “good reason”, or if Mr. Ashken’s employment is not renewed.

A copy of the Ashken Employment Agreement is attached to this report as Exhibit 10.2 and is incorporated herein by reference as though fully set forth herein. The foregoing summary description of the Ashken Employment Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Ashken Employment Agreement.

James E. Lillie Employment Agreement

On January 5, 2011, the Company entered into a Third Amended and Restated Employment Agreement (the “Lillie Employment Agreement”) with James E. Lillie, the Company’s President and Chief Operating Officer. The Lillie Employment Agreement amends and restates the Second Amended and Restated Employment Agreement, dated May 24, 2007, as amended by the First Amendment to Second Amended and Restated Employment Agreement, dated as of December 16, 2009, by and between the Company and Mr. Lillie.

Pursuant to the Lillie Employment Agreement, Mr. Lillie’s term with the Company continues through December 31, 2012. Pursuant to the Lillie Employment Agreement, (a) Mr. Lillie’s annual base salary is $750,000, subject to an annual increase at least equal to the change in Consumer Price Index, (b) Mr. Lillie will be eligible for a bonus of 50% of his base compensation in each year the Company achieves its budgeted earnings per share target as approved by the Board of Directors or 100% of his base compensation in each year the Company achieves earnings per equal to the performance target set by the Committee for payment of maximum bonus to the Company’s employees generally, (c) Mr. Lillie is eligible to receive a performance-based discretionary bonus of up to 50% of his base compensation, to be determined in the discretion of either the Board of Directors or its Committee, and (d) on the date hereof and January 1, 2012, Mr. Lillie shall be entitled to receive an annual grant of 70,000 shares of restricted stock (the “Restricted Stock”), on the terms outlined below.

The restrictions on the award of Restricted Stock will lapse based on achievement of a target appreciation in the stock price of the common stock of the Company set by the Committee at the time of the grant as follows: (i) the vesting target shall be achieved on the date that the average closing price of the Company’s common stock for any 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 Committee of the Company’s Board of Directors (up to certain maximums set forth in the Lillie Employment Agreement), or (ii) the date there is a Change of Control (as defined in the Lillie Employment Agreement) of the Company prior to achievement of the vesting targets for each annual grant and either. Upon satisfaction of the conditions and the lapsing of the restrictions on each grant of Restricted Stock set forth in the Lillie Employment Agreement, Mr. Lillie shall be entitled to sell only 20% (but not more than 20%) of such vested shares in any calendar year ending prior to January 1, 2012, provided that Mr. Lillie shall be entitled to sell all such vested shares at any time on or after January 2012. The foregoing 20% limitation shall lapse upon a Change of Control of the Company. The number of shares granted and the target share price will be adjusted for changes in the common stock as outlined in the Plan or as otherwise mutually agreed in writing between the parties. In the event that the Company does not have a stock incentive plan in place on or prior to January 1 of each year with enough shares to issue to

Mr. Lillie, the Company shall grant to Mr. Lillie such number of shares of Restricted Stock that are available under the Company’s stock incentive plans, and in lieu of any shares of Restricted Stock not granted (the “Remaining Stock”), Mr. Lillie shall receive a mutually acceptable performance based compensation package having a value equivalent to the value of the shares of Remaining Stock not issued to Mr. Lillie as determined in good faith by the Committee or Board of Directors. The terms of the Restricted Stock will be set forth in a restricted stock award agreement.

The Lillie Employment Agreement also entitles Mr. Lillie to participate in the medical, insurance and other fringe benefit plans or policies the Company may make available to, or have in effect for, its personnel with commensurate duties from time to time. In addition, the agreement requires the Company to reimburse Mr. Lillie up to $25,000 per year for the cost of premiums for life insurance for the benefit of Mr. Lillie.

The Lillie Employment Agreement also contains a noncompetition covenant and nonsolicitation provisions (relating to the Company’s employees and customers) effective during the term of his employment and continuing for a period of 12 months after the expiration or termination of Mr. Lillie’s employment.

In the event Mr. Lillie’s employment is terminated by the Company without “cause” (as such term is described in the Lillie Employment Agreement) or upon “disability” (as such term is defined in the Lillie Employment Agreement), Mr. Lillie will be entitled to (a) twenty four months base compensation, (b) the continuation of health insurance and other benefits at the Company’s expense for the period for which he could elect COBRA continuation coverage under the Company’s health benefit plans, (c) a cash payment in an amount to be the actuarially determined value of the cost of coverage under the Company’s medical, dental and vision care plans for a period equal to the difference between 24 months and the period for which he could elect COBRA continuation converge under such plans, (d) the greater of (x) twenty four months target bonus that he would have been entitled to receive for achieving budget for the year in which his employment was terminated and (y) the sum of the actual performance bonus (excluding discretionary bonus) paid to him with respect to the two fiscal years immediately preceding the year in which his employment was terminated, (e) full vesting of any outstanding stock options on the Company’s stock, and (f) the lapsing of any restrictions over any restricted shares of the Company’s stock owned by Mr. Lillie; provided, however, that if the Mr. Lillie is terminated without “cause” or if his agreement is not renewed at the end of the term or any renewal term, the preceding subclause (f) above shall not apply.

If Mr. Lillie is terminated without “cause”, each of the annual restricted stock awards pursuant to the employment agreement shall be granted, notwithstanding whether the scheduled grant date has been achieved. In addition, Mr. Lillie’s employment agreement may be terminated at the Company’s option for “cause.”

The Lillie Employment Agreement provides that if it shall be determined that any payment, distribution or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to Mr. Lillie (whether paid or payable or distributed or distributable) pursuant to the terms of his employment agreement or otherwise (a “Payment”) would be subject, in whole or in part, to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Mr. Lillie shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by

Mr. Lillie after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment.

A copy of the Lillie Employment Agreement is attached to this report as Exhibit 10.3 and is incorporated herein by reference as though fully set forth herein. The foregoing summary description of the Lillie Employment Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Lillie Employment Agreement.

Restricted Stock Agreements

On January 5, 2011, each of Messrs. Franklin, Ashken and Lillie entered into restricted stock agreements, in satisfaction of the requirements of each of their respective employment agreements, pursuant to which the Company granted 230,000 shares of restricted stock (the “Franklin Performance Shares”) to Mr. Franklin (the “Franklin Agreement”), 95,000 shares of restricted stock (the “Ashken Performance Shares”) to Mr. Ashken (the “Ashken Agreement”), and 70,000 shares of restricted stock (the “Lillie Performance Shares”, and together with the Franklin Performance Shares and the Ashken Performance Shares, the “Performance Shares”) to Mr. Lillie (the “Lillie Agreement”, and together with the Franklin Agreement and the Ashken Agreement, the “Restricted Stock Agreements”). The Performance Shares were granted under the Company’s 2009 Stock Incentive Plan (the “Plan”).

In accordance with the terms of the Restricted Stock Agreements, the restrictions on the Performance Shares will lapse on the earlier to occur of: (i) the last day of any five consecutive trading day period during which 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) equals or exceeds thirty four dollars ($34.00), or (ii) the date there is a Change in Control of the Company (as defined in their respective employment agreements).

Except as otherwise provided in the respective employment agreements, in the event any of Messrs. Franklin’s, Ashken’s or Lillie’s employment is terminated by the Company or voluntarily by the respective executive, he will surrender all unvested Performance Shares issuable pursuant to the Restricted Stock Agreements.

Copies of the Franklin Agreement, the Ashken Agreement and the Lillie Agreement are attached to this report as Exhibits 10.4, 10.5 and 10.6, respectively, and are incorporated herein by reference as though fully set forth herein. The foregoing summary description of the Restricted Stock Agreements is not intended to be complete and is qualified in its entirety by the complete text of the respective Restricted Stock Agreements.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.


Exhibit No.		Description
10.1		Fourth Amended and Restated Employment Agreement, dated as of January 5, 2011, between the Company and Martin E. Franklin.

10.2		Fourth Amended and Restated Employment Agreement, dated as of January 5, 2011, between the Company and Ian G.H. Ashken.

10.3		Third Amended and Restated Employment Agreement, dated as of January 5, 2011, between the Company and James E. Lillie.

10.4		Restricted Stock Agreement, dated January 5, 2011, between the Company and Martin E. Franklin.

10.5		Restricted Stock Agreement, dated January 5, 2011, between the Company and Ian G.H. Ashken.

10.6		Restricted Stock Agreement, dated January 5, 2011, between the Company 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: January 7, 2011


JARDEN CORPORATION

By:	/s/ John E. Capps
	Name:	John E. Capps
	Title:	Executive Vice President, General Counsel and Secretary

Exhibit Index


Number		Exhibit

10.1		Fourth Amended and Restated Employment Agreement, dated as of January 5, 2011, between the Company and Martin E. Franklin.

10.2		Fourth Amended and Restated Employment Agreement, dated as of January 5, 2011, between the Company and Ian G.H. Ashken.

10.3		Third Amended and Restated Employment Agreement, dated as of January 5, 2011, between the Company and James E. Lillie.

10.4		Restricted Stock Agreement, dated January 5, 2011, between the Company and Martin E. Franklin.

10.5		Restricted Stock Agreement, dated January 5, 2011, between the Company and Ian G.H. Ashken.

10.6		Restricted Stock Agreement, dated January 5, 2011, between the Company and James E. Lillie.

EX-10.1 2 dex101.htm FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT, MARTIN E. FRANKLIN Fourth Amended and Restated Employment Agreement, Martin E. Franklin

Exhibit 10.1

FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT

FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), dated as of January 5, 2011, by and between Jarden Corporation, a Delaware corporation (the “Company”), and Martin E. Franklin (“Executive”).

WITNESSETH:

WHEREAS, the Company and the Executive are parties to a Third Amended and Restated Employment Agreement, dated as of May 24, 2007, as amended by the First Amendment to Third Amended and Restated Employment Agreement, dated as of December 16, 2009 (as amended, the “Employment Agreement”); and

WHEREAS, the Company desires to continue to employ Executive as Chairman and Chief Executive Officer of the Company on the terms and conditions hereinafter set forth; and

WHEREAS, Executive is willing to continue to be employed as Chairman and Chief Executive Officer of the Company on such terms and conditions; and

WHEREAS, the members of the Compensation Committee have considered potential future compensation for senior executives and retained independent consultants to assist with this review; whereupon, based on the results of its review, the Compensation Committee thereafter concluded that it would recommend that the Board adopt the employment and compensation arrangements in this Agreement; and

WHEREAS, the Compensation Committee of the Company’s Board of Directors and the Company’s Board of Directors, at meetings duly called and held, have each authorized and approved the execution and delivery of this Agreement by the Company; and

WHEREAS, the Company and Executive desire to enter into this Agreement which shall amend, restate and replace the Employment Agreement.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Company and Executive hereby agree as follows:

1. Employment. Upon the terms and subject to the conditions of this Agreement, the Company hereby continues to employ Executive as Chairman and Chief Executive Officer of the Company through December 31, 2012, and Executive hereby agrees to such employment, upon the terms and subject to the conditions set forth in this Agreement. Notwithstanding the foregoing, it is understood and agreed that the Executive from time to time may (a) be appointed to additional offices or to different offices than those set forth above, (b) perform such duties other than those set forth above, and/or (c) relinquish one or more of such offices or other duties, in each instance

as may be mutually agreed to by and between the Company and the Executive and that no such action shall be deemed or construed to otherwise amend or modify any of the remaining terms or conditions of this Agreement. The period during which Executive is employed pursuant to this Agreement shall be referred to as the “Employment Period.”

2. Position and Duties. During the Employment Period, Executive shall, subject to the provisions of Section 1 above, serve as Chairman and, unless the Board of Directors of the Company (the “Board”) and Executive shall jointly determine otherwise, Chief Executive Officer of the Company and shall be nominated for election, and if so elected shall continue to serve, as a member of the Board and, unless the Board and Executive shall jointly determine otherwise, Chairman of the Board. During the Employment Period, Executive shall have the duties, responsibilities and obligations (a) as are customarily assigned to individuals serving as the Chairman and Chief Executive Officer of comparable companies and (b) as have been assigned, exercised or assumed in accordance with past practice, together with such other duties, responsibilities and obligations consistent with such positions as the Board shall from time to time specify, provided that such additional duties, responsibilities and obligations are fair and reasonable under the circumstances, do not unreasonably increase the demands upon the Executive’s time or energies, and are not inconsistent with the Executive’s position(s) with the Company. During the Employment Period, the Executive will be the most senior executive to report to the Board. The Executive shall devote such time and energy to the business and affairs of the Company as he deems reasonably necessary to perform the duties of these positions and shall use his best efforts, skills and abilities to improve and advance the business and interests of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Company hereby acknowledges that the Executive has certain responsibilities to the Marlin group of companies, and may have a direct and/or indirect ownership interest in other non-competing companies, and provided that the Executive otherwise has performed his duties on behalf of the Company hereunder, the Company agrees that nothing contained in this Agreement shall prohibit or interfere with such ownership interest or responsibilities. Nothing contained in this Section 2 shall preclude Executive from (i) serving on the board of directors of any business corporation, unless such service would be contrary to applicable law, (ii) serving on the board of directors of, or working for, any charitable or community organization or (iii) pursuing his personal financial and legal affairs, so long as such activities, individually or collectively, do not interfere with the performance of Executive’s duties hereunder or violate any of the provisions of Section 6 hereof.

Compensation.

(a) Base Salary. Effective as of the date hereof and continuing through the Employment Period, the Company shall pay to the Executive and the Executive shall accept from the Company, as compensation for the performance of services under this Agreement and the Executive’s observance and performance of all of the provisions hereof, a salary of $2,034,728. The Board (or the appropriate committee of the Board) shall annually review Executive’s base salary and shall be increased by a minimum of the Consumer Price Index. In addition, the Board (or the appropriate committee of the Board)

shall annually review Executive’s base salary in light of competitive practices, the base salaries paid to other executive officers of the Company and the performance of Executive and the Company, and may, in its discretion, increase such base salary by any additional amount it determines to be appropriate; provided, however, that any such increase shall not reduce or limit any other obligation of the Company hereunder. Executive’s base salary (as set forth herein or as may be increased from time to time) shall not be reduced without the consent of the Executive. Executive’s base salary payable hereunder, as it may be increased (or decreased with the consent of the Executive) from time to time is referred to herein as “Base Salary.” The Company shall pay Executive his Base Salary in accordance with the normal payroll practices of the Company for its executive officers, but in no event less frequently than once per month.

(b) Annual Bonus. The Executive shall be eligible for a bonus package based on performance. The decision as to whether to pay the Executive an additional bonus based on operations, as well as the amounts and terms of any such bonus package, shall be determined by the Compensation Committee of the Board of Directors as part of its annual budget review process. In addition to any other bonus(es), whether based on performance, operations or otherwise, that the Compensation Committee may award to Executive pursuant to the Company’s Short-Term Cash Incentive Awards under the Plan (as defined below) or such other similar plan that the Company may have in place, the Company’s bonus program shall (i) provide that Executive shall have the opportunity to earn 50% of Base Salary in each year of the Employment Period if the Company achieves the Company’s budgeted earnings per share target as approved by the Board of Directors or, for each year of the Employment Period for which the Company achieves earnings per share equal to the performance target set by the Compensation Committee for payment of maximum bonus to the Company’s employees generally, 100% of Base Salary, and (ii) provide for the Executive to receive a discretionary bonus of up to 100% of Base Salary (the “Discretionary Bonus”) for services specifically performed relating to exceptional performance related to other corporate activity undertaken by the Company in any year. Any Discretionary Bonus shall be determined in the sole discretion of either the Board of Directors or its Compensation Committee.

(c) Performance Restricted Stock Grants. On the date hereof and on January 1 of each year after the date hereof ending on, but including, January 1, 2012 (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 the annual grants of shares of restricted stock (the “Restricted Stock”) set forth in the table below, to be issued under the Company’s 2009 Stock Incentive Plan, as amended (the “Plan”), or such other similar stock plan that the Company may have in place, based on the long-term incentive framework for the Company adopted by the Compensation Committee. The restrictions on the awards shall lapse based on achievement of 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 target appreciation percentage according to the following table:


Grant	Date	Maximum Target Stock Price Appreciation (%) over Closing Price on Last Trading Day of Prior Year
230,000	January 2011	12%
300,000	January 1, 2012	12%

The vesting target 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). In the event that a Change of Control of the Company (as defined in Section 5(d) hereof) occurs prior to achievement of the vesting targets for each annual grant of Restricted Stock pursuant to this Section 3(c), each of the annual restricted stock awards set forth in this Section 3(c) shall be immediately granted, notwithstanding whether the scheduled grant date has been achieved, and the restrictions on all such shares of Restricted Stock shall immediately lapse and such shares shall become fully vested.

In the event that the Company does not have a stock incentive plan in place on or prior to January 1 of each year with enough shares to be granted to the Executive pursuant to this Section 3(c), the Company shall grant to the Executive such number of shares of Restricted Stock that are available under the Company’s stock incentive plans, and in lieu of any shares of Restricted Stock not granted (the “Remaining Stock”), Executive shall receive a mutually acceptable compensation package having performance targets and a value equivalent to the value of the shares of Remaining Stock not issued to the Executive as determined in good faith by the Compensation Committee or Board of Directors, as the case may be.

Upon satisfaction of the conditions and the lapsing of the restrictions on each grant of Restricted Stock as set forth in this Section 3(c), Executive shall be entitled to (i) satisfy the minimum withholding tax obligation (or such greater withholding amount as the Compensation Committee may approve) by electing to have the Company withhold from the Restricted Stock that number of shares having a Fair Market Value (as defined in the Plan) equal to the minimum amount required to be withheld (or such greater withholding amount as the Compensation Committee may approve), determined on the date that the amount of tax to be withheld is to be determined, and (ii) thereafter sell only 20% (but not more than 20%) of such remaining vested shares in any calendar year ending prior to January 1, 2012, provided that Executive shall be entitled to sell all such vested shares at any time on or after January 2012, subject to applicable law, regulation or stock exchange rule. The foregoing 20% limitation shall lapse upon a Change of Control of the Company.

The number of shares granted and the target share price shall be adjusted for changes in the common stock as outlined in Section 18.4 of the Plan or as otherwise mutually agreed in writing between the parties. The terms of each grant of Restricted Stock hereunder shall be set forth in a Restricted Stock Award Agreement, substantially similar to the form used for the 2010 restricted share grant to Executive, which will reflect the terms of this Section 3(c).

Benefits, Perquisites and Expenses.

(a) Benefits. During the Employment Period, Executive shall be eligible to participate in (i) each welfare benefit plan sponsored or maintained by the Company or currently made available to the Executive, including, without limitation, each group life, hospitalization, medical, dental, health, accident or disability insurance, cafeteria or similar plan or program of the Company, (ii) each pension, retirement, deferred compensation or savings plan sponsored or maintained by the Company, and (iii) to the extent of any awards made from time to time by the Board committee administering the plan, each stock option, restricted stock, stock bonus or similar equity-based compensation plan sponsored or maintained by the Company, in each case, whether now existing or established hereafter, to the extent that Executive is eligible to participate in any such plan under the generally applicable provisions thereof. Nothing in this Section 4(a) shall limit the Company’s right to amend or terminate any such plan in accordance with the procedures set forth therein.

(b) Perquisites. During the Employment Period, Executive shall be entitled to four weeks of paid vacation annually, shall be entitled to observe, with pay, all religious holidays historically observed by Executive and shall also be entitled to receive such perquisites as are generally provided to other senior executive officers of the Company in accordance with the then current policies and practices of the Company. For security purposes, the Executive shall be required to use at Company expense private aircraft transportation for all travel unless a private aircraft is not reasonably available. If a private aircraft is not reasonably available, he shall be entitled to first class air travel for business related travel. The Company shall bear expenses for the Executive’s personal use of the private aircraft that does not exceed 75 hours in any calendar year. In addition, during the Employment Period, Executive shall receive, at the Company’s expense:

(i) the assistance of the Company’s tax advisors in regard to personal tax planning and preparing personal income tax returns; and

(ii) a split-dollar life insurance policy, or equivalent, on the Executive in the amount of $10 million (including the $5 million policy currently in place) payable to such beneficiaries as Executive shall select.

or vouchers and such other information as the Company may require and in accordance with the generally applicable policies and procedures of the Company. In addition, the Company shall provide the Executive with a non-accountable supplemental benefit expense up to 5% of Executive’s Base Salary per year, to be used against any expenses incurred by Executive that may be un-reimbursed pursuant to the sentence above or otherwise.

(d) Indemnification. The Company shall indemnify Executive and hold Executive harmless from and against any claim, loss or cause of action arising from or out of Executive’s performance as an officer, director or employee of the Company or any of its subsidiaries or in any other capacity during the Employment Period including, but not limited to, any fiduciary capacity in which Executive serves at the request of the Company, in each instance to the maximum extent permitted by applicable law and the Company’s Amended and Restated Certificate of Incorporation and By-Laws, each as existing on the date hereof and as amended by amendments favorable to Executive.

(e) D & O Insurance. The Company agrees that for six (6) years and one (1) business day after the expiration or earlier termination of the Employment Period the Company shall obtain and provide at its expense directors’ and officers’ liability insurance or directors’ and officers’ liability tail insurance policies covering the Executive with respect to acts or omissions occurring during Executive’s employment with the Company with coverage and amounts (including with respect to the payment of attorney’s fees) equal to or greater than those of the Company’s policy in effect on the date hereof.

(f) Non-exclusivity of Rights. The rights of the Executive under Sections 4(d) and 4(e) shall be in addition to any rights he may have under the articles of incorporation or bylaws of the Company, any agreement providing for indemnification, or under the laws of the State of Delaware or any other applicable laws.

(g) Medical Expense Allowance. If for any reason Executive shall not be covered by a health insurance policy of the Company, Executive shall be entitled to an annual medical, dental, vision care and other health care allowance of up to $30,000 for unreimbursed medical, dental, vision care and other health care expenses incurred by Executive or any of his immediate family members submitted in accordance with expense procedures.

Termination of Employment.

For purposes of Sections 5 and 6, the terms “Additional Termination Benefits”, “Change of Control”, “Disability”, “Earned Salary”, “Severance Benefits”, “Termination for Cause”, “Termination for Good Reason”, “Termination Not for Good Reason”, “Termination Without Cause” and “Vested Benefits” shall have the meanings ascribed to such terms in Section 5(d) hereof.

(a) Early Termination of the Employment Period. Notwithstanding any provision of Section 1, the Employment Period shall end upon the earliest to occur of (1)

a termination of Executive’s employment on account of Executive’s death, (2) a termination due to Executive’s Disability, (3) a Termination for Cause, (4) a Termination Without Cause, (5) a Termination for Good Reason or (6) a Termination Not for Good Reason.

(b) Benefits Payable Upon Early Termination; Change of Control; Non-Renewal. If (1) an early termination of the Employment Period occurs pursuant to Section 5(a) hereof, (2) following a Change of Control of the Company after which the Executive remains employed by the Company or its successor under the terms of this Agreement, or (3) in the event this Agreement is not renewed upon or prior to its expiration on equal or more favorable terms and the Executive, at the time of such expiration, is willing and able to renew the Agreement on terms and conditions substantially similar to those in this Agreement and to continue to provide services to the Company (a “Non-Renewal”), Executive (or, in the event of his death, his surviving spouse, if any, or his estate) shall be paid the type or types of compensation, without duplication, determined to be payable in accordance with the following table at the times established pursuant to Section 5(c):


	Earned Salary	Vested Benefits	Additional Termination Benefits	Severance Benefits

Termination due to death	Payable	Payable	Payable/ to be provided	Payable

Termination due to Disability	Payable	Payable	Payable/ to be provided	Not payable

Termination for Cause	Payable	Payable	Not available	Not payable

Termination for Good Reason	Payable	Payable	Payable/ to be provided	Payable

Termination Without Cause	Payable	Payable	Payable/ to be provided	Payable

Termination Not for Good Reason	Payable	Payable	Not available	Not payable

Change of Control of the Company (without Termination)	Not payable	Not payable	Not available	Not Payable

Non-Renewal (as defined above)	Payable	Payable	Payable/ to be provided	Not Payable

occur of (a) five (5) days after the effective date of Executive’s termination and (b) on the date of such Change of Control. Vested Benefits shall be payable in accordance with the terms of the plan, policy, practice, program, contract or agreement under which such benefits have been awarded or accrued. Additional Termination Benefits shall be provided or made available at the times specified below as to each such Additional Termination Benefit. Unless otherwise specified, Severance Benefits shall be paid in a single lump sum cash payment as soon as practicable, but in no event later than 10 days after the Executive’s termination; provided, that (i) if Executive’s termination is in conjunction with a Change of Control, Executive shall be paid his Severance Benefits on the earlier to occur of (a) five (5) days after the effective date of Executive’s termination and (b) on the date of such Change of Control, and (ii) if Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), at the time of his termination of employment, then (1) on the earlier to occur of (x) five (5) days after the effective date of Executive’s termination and (y) on the date of such Change of Control, Executive shall be paid Severance Benefits in an amount equal to no more than two times the lesser of (A) the sum of the Executive’s annualized compensation based upon the annual rate of pay for services provided to the Company for the year preceding the year in which the Executive’s employment terminates (adjusted for any increase that was expected to continue indefinitely if the Executive’s employment had not terminated) or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Executive’s employment terminates, and (2) any remaining Severance Benefits shall be paid six (6) months and one (1) day following his termination of employment.

(d) Definitions. For purposes of Sections 5 and 6, capitalized terms have the following meanings:

“Additional Termination Benefits” means, the benefits described below:

(i) (A) All of the Executive’s benefits accrued under the employee option, pension, retirement, savings and deferred compensation plans of the Company shall become vested in full (other than with respect to unvested stock options, restricted stock and other equity or equity-based awards, the terms of which are separately addressed in the next succeeding clause); provided, however, that to the extent such accelerated vesting of benefits cannot be provided under one or more of such plans consistent with applicable provisions of the Code, such benefits shall be paid to the Executive in a lump sum within 10 days after termination of employment outside the applicable plan; and (B) (x) except in the case of a termination of Executive’s employment due to Executive’s death or Disability, each of the annual restricted stock awards set forth in Section 3(c) hereof shall be granted, notwithstanding whether the scheduled grant date has been achieved, and (y) any and all unvested stock options, restricted stock and other equity or equity-based awards shall immediately vest as of the end of the Employment Period; provided, however, that if Executive is terminated without Cause or if there is a Non-Renewal or a Termination for Good Reason, the preceding subclauses (x) and (y) above shall not apply, except that all unvested stock options shall immediately vest as of the end of the Employment Period; and

(ii) Executive (and his dependents, if any) will be entitled to continue participation in all of the Company’s medical, dental and vision care plans (the “Health Benefit Plans”), for the period for which the Executive could elect COBRA continuation coverage under the Company’s Health Benefit Plans as a result of his termination of employment; provided that Executive’s participation in the Company’s Health Benefit Plans shall cease on any earlier date that Executive (and his dependents, if any) becomes eligible for comparable benefits from a subsequent employer. Executive’s participation in the Health Benefit Plans will be on the same terms and conditions (including, without limitation, any contributions that would have been required from Executive) that would have applied had Executive continued to be employed by the Company. To the extent any such benefits cannot be provided under the terms of the applicable plan, policy or program, the Company shall provide a comparable benefit under another plan or from the Company’s general assets. In addition, except in the case of termination due to death, Executive will be entitled to receive a cash payment in a lump sum within 10 days after termination of employment, or, if, on the date of such termination of employment, the Executive is a “specified employee” within the meaning of Section 409A of the Code, on the day after the expiration of six (6) months following such termination of employment. The amount of such payment shall be the actuarially determined value of the cost of coverage under the Company’s medical, dental and vision care plans for a period equal to the difference between 36 months and the period for which the Executive could elect COBRA continuation coverage under such plans; and

(iii) Executive will be entitled to continued personal use of the Company owned or leased aircraft, not to exceed 75 hours in any calendar year (such hour usage to be determined regardless of the number of passengers in the aircraft during such usage), at the Company’s sole cost and expense until the third anniversary of Executive’s termination of employment; provided, that, at Executive’s option, in lieu of the foregoing use of the aircraft, Executive will be entitled to purchase any Company-owned aircraft from the Company within 75 days of Executive’s termination of employment at its value for federal income tax purposes as of the time of such termination of employment. Notwithstanding the foregoing, if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of his termination of employment, the Executive may not use the Company’s aircraft during the six-month period beginning on the date of such termination of employment.

“Change of Control of the Company” means and shall be deemed to have occurred if:

(i) any person (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of Voting Securities representing 50 percent or more of the total voting power of all the then-outstanding Voting Securities; or

(ii) the individuals who, as of the date hereof, constitute the Board, together with those who first become directors subsequent to such date and whose recommendation, election or nomination for election to the Board was approved by a vote of at least a majority of the directors then still in office who either were directors as of the date hereof or whose recommendation, election or nomination for election was previously so approved (the “Continuing Directors”),cease for any reason to constitute a majority of the members of the Board; or

(iii) the stockholders of the Company approve a merger, consolidation, recapitalization or reorganization of the Company or a subsidiary, reverse split of any class of Voting Securities, or an acquisition of securities or assets by the Company or a subsidiary, or consummation of any such transaction if stockholder approval is not obtained, provided, that any such transaction in which the holders of outstanding Voting Securities immediately prior to the transaction receive (or, in the case of a transaction involving a subsidiary and not the Company, retain), with respect to such Voting Securities, voting securities of the surviving or transferee entity representing more than 60 percent of the total voting power outstanding immediately after such transaction shall not be deemed a Change of Control if the voting power of each such continuing holder relative to other such continuing holders not substantially altered in such transaction; or

(iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets.

“Disability” means long-term disability within the meaning of the Company’s long-term disability plan under which Executive is covered at the time of determination.

“Earned Salary” means any Base Salary earned, but unpaid, for services rendered to the Company on or prior to the date on which the Employment Period ends pursuant to Section 5(a) hereof.

“Severance Benefits” means an amount equal to (A) three times (two times in the case of termination due to death) Executive’s annualized Base Salary in effect on the date of termination, plus (B) three times (two times in the case of termination due to death) the average annual bonus paid to the Executive over the two immediately preceding fiscal years, including any annual bonus paid pursuant to Section 3(b), plus (C), except in the case of Non-Renewal, the Executive’s accrued annual bonus through the date of termination as determined in accordance with clause (B) above; provided, however, that if Executive is terminated without Cause or there is a Termination for Good Reason, the amounts described in clause (C) above shall be payable only to the extent that the applicable performance targets for the year of termination are actually achieved, and notwithstanding Section 5(c) above, such amounts shall be paid, if payable, within 5 days following the certification of the achievement of such performance targets by the Compensation Committee of the Board.

“Termination for Cause” means a termination of Executive’s employment by the Company within 30 days after the occurrence of (i) Executive’s conviction of a felony or a crime involving moral turpitude, or (ii) Executive’s willful and continued failure to perform the material duties of his position (other than as a result of Disability) if such failure continues for a period of 30 days after Executive’s receipt of written notice from the Company specifying the exact details of such alleged failure and such alleged failure has had (or is expected to have) a material adverse effect on the business of the Company or its subsidiaries; provided, that if the details of a Termination for Cause were the subject of two previous notices required hereunder, the Company may terminate this Agreement as a Termination for Cause without the provision of any additional notice and cure period.

“Termination for Good Reason” means a termination of Executive’s employment by Executive following (i) a material diminution in Executive’s positions, duties and responsibilities from those described in Section 2 hereof, (ii) the removal of Executive from his position as either Chairman of the Board or Chief Executive Officer of the Company, or the failure to re-elect Executive as Chairman of the Board of the Company, unless the Company and Executive shall mutually agree to such removal or failure, as applicable, in writing prior to such action being taken, (iii) a material reduction in Executive’s Base Salary, (iv) a material breach by the Company of any other provision of this Agreement or (v) a Change in Control of the Company (but in no event later than six months after such Change of Control); provided, that for any termination pursuant to (i) through (iv) above, Executive shall provide the Company’s Board of Directors with 30 days prior written notice of such good reason termination specifying the exact details of such alleged diminution or material breach, which notice must in any event be provided within 90 days after the occurrence of the event described in clause (i), (ii), (iii), (iv) or (v) above, and the Company shall have 30 days from the date of its receipt of such notice to cure such breach or reverse or correct such diminution to the reasonable satisfaction of Executive; provided further, that termination of Executive’s employment by Executive following any of the events set forth in clauses (i) through (iv) above must occur, if at all, within two (2) years following the occurrence of the event(s) giving rise to the termination unless a shorter time is specified above.

“Termination Not For Good Reason” means any termination of Executive’s employment by Executive other than Termination for Good Reason or a termination due to Executive’s Disability or death.

“Termination Without Cause” means any termination of Executive’s employment by the Company other than a Termination for Cause or a termination due to Executive’s Disability.

Agreement, any outstanding equity awards the vesting of which is both time-based and performance-based shall be considered vested if, and to the extent, the applicable performance targets have been met as of the date of termination, and any time-based restrictions on such awards shall immediately lapse as of the date of termination.

“Voting Securities or Security” means any securities of the Company which carry the right to vote in the election of, or participate in the appointment of, the Company’s directors.

(e) Full Discharge of Obligations. Except as expressly provided in the last sentence of this Section 5(e), the amounts payable and obligations owed to Executive pursuant to this Section 5 and Section 7(d) following termination of his employment (including amounts payable with respect to Vested Benefits) shall be in full and complete satisfaction of Executive’s rights under this Agreement. Except as otherwise set forth in Section 6, after the effective date of a termination of employment for any reason, Executive shall have no further obligations or liabilities to the Company. Nothing in this Section 5(e) shall be construed to release the Company from its obligations described in Sections 3(c), 4(d) and 4(e).

(f) Excise Tax Gross-Up.

(i) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, distribution or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to Executive or for his benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a “Payment”) would be subject, in whole or in part, to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(f) and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment.

purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive’s adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Executive of the Accountants’ determination. Any determination by the Accountants shall be binding upon the Company and Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 5(f) (an “Overpayment” or “Underpayment,” respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to Executive. In the event that the Company exhausts its remedies pursuant to Section 5(f)(iii) and Executive is required to make a payment of any Excise Tax, the Company shall promptly pay the Underpayment to or for Executive’s benefit.

(iii) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall:

(a) give the Company any information reasonably requested by the Company relating to such claim;

(b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;

(d) permit the Company to participate in any proceedings relating to such claims; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax, income tax or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

Notwithstanding any other provision of this Section 5(f), (i) all taxes and related expenses described in this Section 5(f) shall be paid or reimbursed no later than the end of the year following the year in which the applicable taxes are remitted or, in the case of expenses with respect to which there is no remittance of taxes, no later than the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, and (ii) if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of his termination of employment, no tax or related expense shall be paid or reimbursed hereunder during the six-month period beginning on the date of such termination of employment.

6. Non-competition and Confidentiality. In consideration of the salary and benefits to be provided by the Company hereunder, including particularly the severance arrangements set forth herein, Executive agrees to the following provisions of this Section.

which directly competes with the Company or any of its subsidiaries; provided, however, that notwithstanding any provision of this section 6(a), Executive (i) may own for investment purposes up to 5% of the equity interests of any such company; (ii) may manage, operate, be employed by, participate in, or provide services to a company that engages in such restricted activities if Executive does not personally participate or advise as to such restricted activities and Executive’s involvement within such company is limited to business units that do not engage in such activities; and (iii) may own (or hold a direct or indirect ownership interest in), manage, operate, control, be employed by, participate in or, provide services or financial assistance to any company or business that he is permitted during the Employment Period, pursuant to this Agreement or otherwise, to own (or hold a direct or indirect ownership interest in), manage, operate, control, be employed by, participate in or, provide services or financial assistance to.

(b) Confidentiality. Executive agrees that, during the Employment Period and thereafter, he shall hold and keep confidential any trade secrets, customer lists and pricing or other confidential information, or any inventions, discoveries, improvements, products, whether patentable practices, methods or not, directly or indirectly useful in or relating to the business of the Company or its subsidiaries as conducted by it from time to time, as to which Executive shall at any time during the Employment Period become informed, and he shall not directly or indirectly disclose any such information to any person, firm or corporation or use the same except in connection with the business and affairs of the Company or its subsidiaries. The foregoing prohibition shall not apply to the extent such information, knowledge or data (a) was publicly known at the time of disclosure to Executive, (b) becomes publicly known or available thereafter other than by any means in violation of this Agreement, or (c) is required to be disclosed by Executive as a matter of law or pursuant to any court or regulatory order.

(c) Company Property. Except as expressly provided herein, Executive shall return to the Company all property of the Company and its subsidiaries promptly following Executive’s termination of employment.

(d) Injunctive Relief and Other Remedies with Respect to Covenants. Executive acknowledges and agrees that the covenants and obligations of Executive with respect to non-competition, confidentiality and Company property, relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants and obligations may cause the Company irreparable injury for which adequate remedies are not available at law. Therefore, Executive agrees that the Company shall be entitled to seek an injunction, restraining order or such other equitable relief (without the requirement to post bond) restraining Executive from committing any violation of the covenants and obligations contained in this Section 6. This remedy is in addition to any other rights and remedies the Company may have at law or in equity.

Miscellaneous.

(a) Survival. Sections 4 (relating to indemnification), 5 (relating to early termination, change of control and non-renewal), 6 (relating to non-competition and

confidentiality), 7(b) (relating to arbitration), 7(c) (relating to binding effect), 7(d) (relating to full-settlement and legal expenses) and 7(n) (relating to governing law) shall survive the termination hereof.

(b) 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 New York City 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.

(c) 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. This Agreement shall also inure to the benefit of Executive’s heirs, executors, administrators and legal representatives.

(d) Full-Settlement; Legal Expenses. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against Executive or others. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement. The Company agrees to pay, upon written demand therefore by Executive, all legal fees and expenses which Executive may reasonably incur as a result of any dispute or contest by or with the Company or others regarding the validity or enforceability of, or liability under, any provision of this Agreement (including as a result of any contest by Executive about the amount of any payment hereunder) if Executive substantially prevails in the dispute or contest or the dispute or contest is settled, plus in each case interest at the applicable Federal rate provided for in Section 7872(f)(2) of the Code. In any such action or arbitration brought by the Executive for damages or to enforce any provisions of this Agreement, the Executive shall be entitled to seek both legal and equitable relief and remedies, including, without limitation, specific performance of the Company’s obligations hereunder, in his sole discretion.

(e) Assignment. Except as provided under Section 7(c), 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) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the matters referred to herein. No other agreement (other than awards made in accordance with the terms of one of the Company’s applicable compensatory plans, programs or arrangements) relating to the terms of Executive’s employment by the Company, oral or otherwise, shall be binding between the parties. There are no promises, representations, inducements or statements between the parties other than those that are expressly contained herein. 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.

(g) Severability; Reformation. 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. In the event that any of the provisions of any of Section 6 is not enforceable in accordance with its terms, Executive and the Company agree that such Section shall be reformed to make such Section enforceable in a manner which provides the Company the maximum rights permitted at law.

(h) Waiver. Waiver by any party hereto of any breach or default by the other party of any of the terms of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement may occur except in a written instrument signed by the waiving party, and no waiver shall be implied from any course of dealing between the parties hereto or from any failure by either party hereto to assert its or his rights hereunder on any occasion or series of occasions.

(i) 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):


To the Company:		Jarden Corporation
		Suite B-302
		555 Theodore Fremd Avenue
		Rye, New York 10580
		Attention: Chief Financial Officer


With a Copy to:		Kane Kessler, P.C.
		1350 Avenue of the Americas
		26th Floor
		New York, New York 10019
		Attn: Robert L. Lawrence, Esq.

To the Executive:		Mr. Martin E. Franklin

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

(k) Headings. Headings to paragraphs in this Agreement are for the convenience of the parties only and are not intended to be part of or to affect the meaning or interpretation hereof.

(l) 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.

(m) Withholding. Any payments provided for herein shall be reduced by any amounts required to be withheld by the Company from time to time under applicable Federal, State or local income tax laws or similar statutes then in effect.

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

(o) Effectiveness. This Agreement shall be effective and in full force and effect as of the date first written above.

(p) Compliance with Section 409A. Notwithstanding any other provision of this Agreement, for purposes of this Agreement, the Executive shall not be treated as having terminated employment with the Company unless and until the Executive has incurred a “separation from service” within the meaning of Section 409A of the Code and all amounts payable hereunder and benefits to be provided hereunder shall be paid and/or provided in compliance with Section 409A of the Code or in accordance with an applicable exemption from Section 409A of the Code.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date set forth above.

JARDEN CORPORATION

/s/ Ian G.H. Ashken

Name: Ian G.H. Ashken

Title: Vice Chairman and

Chief Financial Officer

/s/ Martin E. Franklin

Martin E. Franklin

EX-10.2 3 dex102.htm FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT, IAN G.H. ASHKEN Fourth Amended and Restated Employment Agreement, Ian G.H. Ashken

Exhibit 10.2

FOURTH AMENDED AND RESTATED EMPLOYMENT AGREEMENT

WITNESSETH:

WHEREAS, the Company desires to continue to employ Executive as Vice Chairman and Chief Financial Officer of the Company on the terms and conditions hereinafter set forth; and

WHEREAS, Executive is willing to continue to be employed as Vice Chairman and Chief Financial Officer of the Company on such terms and conditions; and

WHEREAS, the Company and Executive desire to enter into this Agreement which shall be deemed to amend, restate and replace the Employment Agreement.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Company and Executive hereby agree as follows:

1. Employment. Upon the terms and subject to the conditions of this Agreement, the Company hereby continues to employ Executive as Vice Chairman and Chief Financial Officer of the Company through December 31, 2012, and Executive hereby agrees to such employment, upon the terms and subject to the conditions set forth in this Agreement. Notwithstanding the foregoing, it is understood and agreed that the Executive from time to time may (a) be appointed to additional offices or to different offices than those set forth above, (b) perform such duties other than those set forth above, and/or (c) relinquish one or more of such offices or other duties, in each instance as may be mutually agreed to by and between the Company and the Executive and that no

such action shall be deemed or construed to otherwise amend or modify any of the remaining terms or conditions of this Agreement. The period during which Executive is employed pursuant to this Agreement shall be referred to as the “Employment Period.”

2. Position, Duties and Location. During the Employment Period, Executive shall, subject to the provisions of Section 1 above, serve as Vice Chairman and Chief Financial Officer of the Company and shall be nominated for election, and if so elected shall continue to serve, as a member of the Board of Directors of the Company (the “Board”) and, unless the Board and Executive shall jointly determine otherwise, Vice Chairman of the Board. During the Employment Period, Executive shall have the duties, responsibilities and obligations (a) as are customarily assigned to individuals serving as the Vice Chairman and Chief Financial Officer of comparable companies and (b) as have been assigned, exercised or assumed in accordance with past practice, together with such other duties, responsibilities and obligations consistent with such positions as the Board shall from time to time specify, provided that such additional duties, responsibilities and obligations are fair and reasonable under the circumstances, do not unreasonably increase the demands upon the Executive’s time or energies, and are not inconsistent with the Executive’s position as Vice Chairman and Chief Financial Officer. The Executive shall devote such time and energy to the business and affairs of the Company as he deems reasonably necessary to perform the duties of these positions and shall use his best efforts, skills and abilities to improve and advance the business and interests of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Company hereby acknowledges that the Executive has certain responsibilities to the Marlin group of companies, and may have a direct or indirect ownership interest in certain other non-competing companies, and provided that the Executive otherwise has performed his duties on behalf of the Company hereunder, the Company agrees that nothing contained in this Agreement shall prohibit or interfere with such ownership or responsibilities. Nothing contained in this Section 2 shall preclude Executive from (i) serving on the board of directors of any business corporation, unless such service would be contrary to applicable law, (ii) serving on the board of directors of, or working for, any charitable or community organization or (iii) pursuing his personal financial and legal affairs, so long as such activities, individually or collectively, do not interfere with the performance of Executive’s duties hereunder or violate any of the provisions of Section 6 hereof. Executive’s place of employment shall be at the Company’s principal executive office in Rye, New York throughout the term of this Agreement.

Compensation.

(a) Base Salary. Effective as of the date hereof and continuing through the Employment Period, the Company shall pay to the Executive and the Executive shall accept from the Company, as compensation for the performance of services under this Agreement and the Executive’s observance and performance of all of the provisions hereof, a salary of $939,105. The Board (or the appropriate committee of the Board) shall annually review Executive’s base salary and shall be increased by a minimum of the Consumer Price Index. In addition, the Board (or the appropriate committee of the Board) shall annually review Executive’s base salary in light of competitive practices, the base

salaries paid to other executive officers of the Company and the performance of Executive and the Company, and may, in its discretion, increase such base salary by any additional amount it determines to be appropriate; provided, however, that any such increase shall not reduce or limit any other obligation of the Company hereunder. Executive’s base salary (as set forth herein or as may be increased from time to time) shall not be reduced. Executive’s base salary payable hereunder, as it may be increased from time to time is referred to herein as “Base Salary.” The Company shall pay Executive his Base Salary in accordance with the normal payroll practices of the Company for its executive officers, but in no event less frequently than once per month.

(c) Performance Restricted Stock Grants. On the date hereof and on January 1 of each year after the date hereof ending on, but including, January 1, 2012 (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 the annual grants of shares of restricted stock (the “Restricted Stock”) set forth in the table below, to be issued under the Company’s 2009 Stock Incentive Plan, as amended (the “Plan”) or such other similar stock plan that the Company may have in place, based on the long-term incentive framework for the Company adopted by the Compensation Committee. The restrictions on the awards shall lapse based on achievement of 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 target appreciation percentage according to the following table:


Grant	Date	Maximum Target Stock Price Appreciation (%) over Closing Price on Last Trading Day of Prior Year
95,000	January 2011	12%
135,000	January 1, 2012	12%

Benefits, Perquisites and Expenses.

(b) Perquisites. During the Employment Period, Executive shall be entitled to four weeks of paid vacation annually, shall be entitled to observe, with pay, all religious holidays historically observed by Executive and shall also be entitled to receive such perquisites as are generally provided to other senior executive officers of the Company in accordance with the then current policies and practices of the Company. Executive shall be entitled to use for his personal use any airplanes that the Company owns or is entitled to use as a result of lease, pooling, sharing or other agreements, provided that Executive shall either prepay or pay directly, on or prior to such use, the actual (if determinable) or estimated direct cost of such use. In addition, during the Employment Period, Executive shall receive, at the Company’s expense:

(i) the assistance of the Company’s tax advisors in regard to personal tax planning and preparing personal income tax returns; and

(ii) a split-dollar life insurance policy, or equivalent, on the Executive in the amount of $6 million payable to such beneficiaries as Executive shall select.

(c) Business Expenses. During the Employment Period, the Company shall pay or reimburse Executive for all reasonable expenses incurred or paid by Executive in the performance of Executive’s duties hereunder upon presentation of expense statements or vouchers and such other information as the Company may require and in accordance with the generally applicable policies and procedures of the Company. In addition, the Company shall provide the Executive with a non-accountable supplemental benefit

expense up to 5% of Executive’s Base Salary per year, to be used against any expenses incurred by Executive that may be un-reimbursed pursuant to the sentence above or otherwise.

Termination of Employment.

(a) Early Termination of the Employment Period. Notwithstanding any provision of Section 1, the Employment Period shall end upon the earliest to occur of (1) a termination of Executive’s employment on account of Executive’s death, (2) a termination due to Executive’s Disability, (3) a Termination for Cause, (4) a Termination Without Cause, (5) a Termination for Good Reason or (6)a Termination Not for Good Reason.

expiration on equal or more favorable terms and the Executive, at the time of such expiration, is willing and able to renew the Agreement on terms and conditions substantially similar to those in this Agreement and to continue to provide services to the Company (a “Non-Renewal”), Executive (or, in the event of his death, his surviving spouse, if any, or his estate) shall be paid the type or types of compensation, without duplication, determined to be payable in accordance with the following table at the times established pursuant to Section 5(c):


	Earned Salary	Vested Benefits	Additional Termination Benefits	Severance Benefits

Termination due to death	Payable	Payable	Payable/ to be provided	Payable

Termination due to Disability	Payable	Payable	Payable/ to be provided	Not payable

Termination for Cause	Payable	Payable	Not available	Not payable

Termination for Good Reason	Payable	Payable	Payable/ to be provided	Payable

Termination Without Cause	Payable	Payable	Payable/ to be provided	Payable

Termination Not for Good Reason	Payable	Payable	Not available	Not payable

Change of Control of the Company (without Termination)	Not payable	Not payable	Not available	Not Payable

Non-Renewal (as defined above)	Payable	Payable	Payable/ to be provided	Not Payable

(c) Timing of Payments. Earned Salary shall be paid in cash in a single lump sum as soon as practicable following the end of the Employment Period, but in no event more than 10 days thereafter; provided, that if Executive’s termination is in conjunction with a Change of Control, Executive shall be paid his Earned Salary on the earlier to occur of (a) five (5) days after the effective date of Executive’s termination and (b) on the date of such Change of Control. Vested Benefits shall be payable in accordance with the terms of the plan, policy, practice, program, contract or agreement under which such benefits have been awarded or accrued. Additional Termination Benefits shall be provided or made available at the times specified below as to each such Additional Termination Benefit. Unless otherwise specified, Severance Benefits shall be paid in a single lump sum cash payment as soon as practicable, but in no event later than 10 days after the Executive’s termination; provided, that (i) if Executive’s termination is in

conjunction with a Change of Control, Executive shall be paid his Severance Benefits on the earlier to occur of (a) five (5) days after the effective date of Executive’s termination and (b) on the date of such Change of Control, and (ii) if Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), at the time of his termination of employment, then (1) on the earlier to occur of (x) five (5) days after the effective date of Executive’s termination and (y) on the date of such Change of Control, Executive shall be paid Severance Benefits in an amount equal to no more than two times the lesser of (A) the sum of the Executive’s annualized compensation based upon the annual rate of pay for services provided to the Company for the year preceding the year in which the Executive’s employment terminates (adjusted for any increase that was expected to continue indefinitely if the Executive’s employment had not terminated) or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Executive’s employment terminates, and (2) any remaining Severance Benefits shall be paid six (6) months and one (1) day following his termination of employment.

(d) Definitions. For purposes of Sections 5 and 6, capitalized terms have the following meanings:

“Additional Termination Benefits” means, the benefits described below:

(i) (A) All of the Executive’s benefits accrued under the employee option, pension, retirement, savings and deferred compensation plans of the Company shall become vested in full (other than with respect to unvested stock options, restricted stock and other equity or equity-based awards, the terms of which are separately addressed in the next succeeding clause); provided, however, that to the extent such accelerated vesting of benefits cannot be provided under one or more of such plans consistent with applicable provisions of the Code, such benefits shall be paid to the Executive in a lump sum within 10 days after termination of employment outside the applicable plan; and (B) (x) except in the case of a termination of Executive’s employment due to Executive’s death or Disability, each of the annual restricted stock awards set forth in Section 3(c) hereof shall be granted, notwithstanding whether the scheduled grant date has been achieved, and (y) any and all unvested stock options, restricted stock and other equity or equity-based awards shall immediately vest as of the end of the Employment Period; provided, however, that if Executive is terminated without Cause or if there is a Non-Renewal or a Termination for Good Reason, the preceding subclauses (x) and (y) above shall not apply, except that all unvested stock options, shall immediately vest as of the end of the Employment Period; and

eligible for comparable benefits from a subsequent employer. Executive’s participation in the Health Benefit Plans will be on the same terms and conditions (including, without limitation, any contributions that would have been required from Executive) that would have applied had Executive continued to be employed by the Company. To the extent any such benefits cannot be provided under the terms of the applicable plan, policy or program, the Company shall provide a comparable benefit under another plan or from the Company’s general assets. In addition, except in the case of termination due to death, Executive will be entitled to receive a cash payment in a lump sum within 10 days after termination of employment, or, if, on the date of such termination of employment, the Executive is a “specified employee” within the meaning of Section 409A of the Code, on the day after the expiration of six (6) months following such termination of employment. The amount of such payment shall be the actuarially determined value of the cost of coverage under the Company’s medical, dental and vision care plans for a period equal to the difference between 36 months and the period for which the Executive could elect COBRA continuation coverage under such plans.

“Change of Control of the Company” means and shall be deemed to have occurred if:

“Disability” means long-term disability within the meaning of the Company’s long-term disability plan under which Executive is covered at the time of determination.

“Earned Salary” means any Base Salary earned, but unpaid, for services rendered to the Company on or prior to the date on which the Employment Period ends pursuant to Section 5(a) hereof.

months after such Change of Control); provided, that for any termination pursuant to (i) through (iv) above, Executive shall provide the Company’s Board of Directors with 30 days prior written notice of such good reason termination specifying the exact details of such alleged diminution or material breach, which notice must in any event be provided within 90 days after the occurrence of the event described in clause (i), (ii), (iii), (iv) or (v) above, and the Company shall have 30 days from the date of its receipt of such notice to cure such breach or reverse or correct such diminution to the reasonable satisfaction of Executive; provided further, that termination of Executive’s employment by Executive following any of the events set forth in clauses (i) through (iv) above must occur, if at all, within two (2) years following the occurrence of the event(s) giving rise to the termination unless a shorter time is specified above.

“Termination Not For Good Reason” means any termination of Executive’s employment by Executive other than Termination for Good Reason or a termination due to Executive’s Disability or death.

“Termination Without Cause” means any termination of Executive’s employment by the Company other than a Termination for Cause or a termination due to Executive’s Disability.

“Vested Benefits” means amounts which are vested or which Executive is otherwise entitled to receive under the terms of or in accordance with any plan, policy, practice or program of, or any contract or agreement with, the Company or any of its subsidiaries, at or subsequent to the date of his termination without regard to the performance by Executive of further services or the resolution of a contingency. For the purposes of this Agreement, any outstanding equity awards the vesting of which is both time-based and performance-based shall be considered vested if, and to the extent, the applicable performance targets have been met as of the date of termination, and any time-based restrictions on such awards shall immediately lapse as of the date of termination.

“Voting Securities or Security” means any securities of the Company which carry the right to vote in the election of, or participate in the appointment of, the Company’s directors.

(f) Excise Tax Gross-Up.

(ii) All determinations required to be made under this Section 5(f), including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Executive’s employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Agreement, the “Accountants” shall mean PricewaterhouseCoopers LLP or another accounting firm mutually acceptable to the Company and Executive. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive’s adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Executive of the Accountants’ determination. Any determination by the Accountants shall be binding upon the Company and Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 5(f)(an “Overpayment” or “Underpayment,” respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, Executive shall promptly repay the Overpayment to the Company; provided, however, that in the

event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to Executive. In the event that the Company exhausts its remedies pursuant to Section 5(f) (iii) and Executive is required to make a payment of any Excise Tax, the Company shall promptly pay the Underpayment to or for Executive’s benefit.

(a) give the Company any information reasonably requested by the Company relating to such claim;

(a) Non-competition. During the Employment Period and during the greater of (i) three years following any termination of Executive’s employment, or (ii) any period thereafter during which Executive continues to receive benefits under this Agreement, other than a Termination Without Cause, a Termination for Good Reason or Non-Renewal, Executive shall not directly or indirectly own, manage, operate, control, be employed by, participate in or, provide services or financial assistance to any business which directly competes with the Company or any of its subsidiaries; provided, however, that notwithstanding any provision of this section 6(a), Executive (i) may own for investment purposes up to 5% of the equity interests of any such company; (ii) may manage, operate, be employed by, participate in, or provide services to a company that engages in such restricted activities if Executive does not personally participate or advise as to such restricted activities and Executive’s involvement within such company is limited to business units that do not engage in such activities; and (iii) may own (or hold a direct or indirect ownership interest in), manage, operate, control, be employed by, participate in or, provide services or financial assistance to any company or business that he is permitted during the Employment Period, pursuant to this Agreement or otherwise, to own (or hold a direct or indirect ownership interest in), manage, operate, control, be employed by, participate in or, provide services or financial assistance to.

the extent such information, knowledge or data (a) was publicly known at the time of disclosure to Executive, (b) becomes publicly known or available thereafter other than by any means in violation of this Agreement, or (c) is required to be disclosed by Executive as a matter of law or pursuant to any court or regulatory order.

Miscellaneous.

(a) Survival. Sections 4 (relating to indemnification), 5 (relating to early termination, change of control and non-renewal), 6 (relating to non-competition and confidentiality), 7(b) (relating to arbitration), 7(c) (relating to binding effect), 7(d) (relating to full-settlement and legal expenses) and 7(n) (relating to governing law) shall survive the termination hereof.

(b) 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 New York City 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.

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. This Agreement shall also inure to the benefit of Executive’s heirs, executors, administrators and legal representatives.


To the Company:		Jarden Corporation
		Suite B-302
		555 Theodore Fremd Avenue
		Rye, New York 10580
		Attention: Chief Financial Officer

With a Copy to:		Kane Kessler, P.C.
		1350 Avenue of the Americas
		26th Floor
		New York, New York 10019
		Attn: Robert L. Lawrence, Esq.

To the Executive:		Mr. Ian G.H. Ashken

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

(k) Headings. Headings to paragraphs in this Agreement are for the convenience of the parties only and are not intended to be part of or to affect the meaning or interpretation hereof.

(l) 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.

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

(o) Effectiveness. This Agreement shall be effective and in full force and effect as of the date first written above.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date set forth above.

JARDEN CORPORATION

/s/ Martin E. Franklin

Name: Martin E. Franklin

Title: Chairman and

Chief Executive Officer

/s/ Ian G.H. Ashken

Ian G.H. Ashken

EX-10.3 4 dex103.htm THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT, JAMES E. LILLIE Third Amended and Restated Employment Agreement, James E. Lillie

Exhibit 10.3

THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”), dated as of January 5, 2011, is entered into between Jarden Corporation, a Delaware corporation (the “Company”) and James E. Lillie, (the “Employee”).

WITNESSETH:

WHEREAS, the Company and the Employee are parties to a Second Amended and Restated Employment Agreement, dated as of May 24, 2007, as amended by the First Amendment to Second Amended and Restated Employment Agreement, dated as of December 16, 2009 (as amended, “Employment Agreement”); and

WHEREAS, the Company desires to continue to employ Employee as President and Chief Operating Officer of the Company on the terms and conditions hereinafter set forth; and

WHEREAS, Employee is willing to continue to be employed as President and Chief Operating Officer of the Company on such terms and conditions; and

WHEREAS, the Company and Employee desire to enter into this Agreement which shall be deemed to amend, restate and replace the Employment Agreement.

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

1. Employment. The Company hereby continues to employ the Employee as Chief Operating Officer of the Company, and the Employee accepts such employment, upon the terms and subject to the conditions set forth in this Agreement. Notwithstanding the foregoing, it is understood and agreed that the Employee from time to time may (a) be appointed to additional offices or to different offices than those set forth above provided they are within a fifty mile radius of the current Rye, New York, location, (b) perform such duties other than those set forth above, and/or (c) relinquish one or more of such offices or other duties, as may be mutually agreed by and between the Company and the Employee; and, that no such action shall be deemed or construed to otherwise amend or modify any of the remaining terms or conditions of this Agreement.

2. Term. The term of this Agreement shall commence on the date hereof and shall end on December 31, 2012 (the “Initial Term”), subject to earlier termination pursuant to the provisions of Section 10. The employment of the Employee shall automatically continue hereunder following the Initial Term for the successive one (1) year periods (the “Renewal Terms”) unless the Company or the Employee gives written notice to the other at least (90) ninety days prior to the end of the Initial Term. Subsequent to the Initial Term, the employment of the Employee hereunder may be terminated at the end of any Renewal Term by delivery by either the Employee or the Company of a written notice to the other part at least (90) ninety days prior to the end of any Renewal Term.

3. Duties. During the term of this Agreement, the Employee shall, subject to the provisions of Section 1 above, serve as President and/or Chief Operating Officer of the Company and shall perform all duties commensurate with his position that may be assigned to him by the Chief Executive Officer of the Company and/or by the Board of Directors of the Company consistent with such position. The Employee shall devote substantially all of his time and energies to the business and affairs of the Company and shall use his best efforts, skills and abilities to promote the interests of the Company as necessary to diligently and competently perform the duties of his position.

4. Compensation and Benefits. During the term of this Agreement, the Company shall pay to the Employee, and the Employee shall accept from the Company, as compensation for the performance of services under this Agreement and the Employee’s observance and performance of all of the provisions hereof, a salary of $750,000 per year (the “Base Compensation”). The Base Compensation shall be reviewed annually and shall be increased by a minimum of the Consumer Price Index. In addition, the Employee shall be eligible for a bonus package based on performance. The decision as to whether to pay the Employee a bonus, as well as the amounts and terms of any such bonus package, shall be determined by the Compensation Committee of the Board of Directors as part of its annual budget review process. In addition to any other bonus(es), whether based on performance, operations or otherwise, that the Compensation Committee may award to Employee pursuant to the Company’s Short-Term Cash Incentive Awards under the Plan (as defined below) or such other similar plan that the Company may have in place, the bonus program shall give the Employee the opportunity to earn up to 50% of Base Compensation in each year if the Company achieves the Company’s budgeted earnings per share target for such year as approved by the Board of Directors and up to 100% of Base Compensation in each year if the Company achieves earnings per share equal to the performance target set by the Compensation Committee for payment of maximum bonus to the Company’s employees generally. In addition, the Employee will be eligible to be awarded a discretionary bonus of up to 50% of Base Compensation for services specifically performed relating to exceptional performance related to other corporate activity undertaken by the Company in any year (the “Discretionary Bonus”). Any Discretionary Bonus shall be determined in the sole discretion of either the Board of Directors or its Compensation Committee.

The Employee’s salary shall be payable in accordance with the normal payroll practices of the Company and shall be subject to withholding for applicable taxes and other amounts. During the term of this Agreement, the Employee shall be entitled to participate in or benefit from, in accordance with the eligibility and other provisions thereof, such medical, insurance, and other fringe benefit plans or policies as the Company may make available to, or have in effect for, its personnel with commensurate duties from time to time. The Company retains the rights to terminate or alter any such plans or policies from time to time. The Employee shall also be immediately entitled to four weeks of vacations as well as sick leave and other similar benefits in accordance with policies of the Company from time to time in effect for personnel with commensurate duties. During the Initial Term and any Renewal Terms, the Company will reimburse Employee up to $25,000 per year for the cost of premiums for life insurance for the benefit of the Employee.

On the date hereof and on January 1 of each year after the date hereof ending on, but including, January 1, 2012 (or, if any such date is not a business day, on the next succeeding business day), provided Employee is employed on such date, Employee shall be entitled to receive the annual grants of restricted stock (the “Restricted Stock”) set forth in the table below, to be issued under the Company’s 2009 Stock Incentive Plan, as amended (the “Plan”) or such other similar stock plan that the Company may have in place, based on the long-term incentive framework for the Company adopted by the Compensation Committee. The restrictions on the awards shall lapse based on achievement of 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 target appreciation percentage according to the following table:


Grant	Date	Maximum Target Stock Price Appreciation (%) over Closing Price on Last Trading Day of Prior Year
70,000	January 2011	12%
70,000	January 1, 2012	12%

The vesting target 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). In the event that a Change of Control of the Company (as defined herein) occurs prior to achievement of the vesting targets for each annual grant of Restricted Stock pursuant to this Section 4, each of the annual restricted stock awards set forth in this Section 4 shall be immediately granted, notwithstanding whether the scheduled grant date has been achieved, and the restrictions on all such shares of Restricted Stock shall immediately lapse and such shares shall become fully vested.

In the event that the Company does not have a stock incentive plan in place on or prior to January 1 of each year with enough shares to be granted to the Employee pursuant to this Section 4, the Company shall grant to the Employee such number of shares of Restricted Stock that are available under the Company’s stock incentive plans, and in lieu of any shares of Restricted Stock not granted (the “Remaining Stock”), Employee shall receive a mutually acceptable compensation package having performance targets and a value equivalent to the value of the shares of Remaining Stock not issued to the Employee as determined in good faith by the Compensation Committee or Board of Directors, as the case may be.

Upon satisfaction of the conditions and the lapsing of the restrictions on each grant of Restricted Stock as set forth in this Section 4, Employee shall be entitled to (i) satisfy the minimum withholding tax obligation (or such greater withholding amount as the Compensation Committee may approve) by electing to have the Company withhold from the Restricted Stock that number of shares having a Fair Market Value (as defined in the Plan) equal to the minimum amount required to be withheld (or such greater withholding amount as the Compensation Committee may approve), determined on the date that the amount of tax to be withheld is to be determined, and (ii) thereafter sell only 20% (but not more than 20%) of such remaining vested shares in any calendar year ending prior to January 1, 2012, provided that Employee shall be entitled to sell all such vested shares at any time on or after January 2012, subject to applicable law, regulation or stock exchange rule. The foregoing 20% limitation shall lapse upon a Change of Control of the Company.

The number of shares granted and the target share price shall be adjusted for changes in the common stock as outlined in Section 18.4 of the Plan or as otherwise mutually agreed in writing between the parties. The terms of each grant of Restricted Stock hereunder shall be set forth in a Restricted Stock Award Agreement, substantially similar to the form used for the 2010 restricted share grant to Employee, which will reflect the terms of this Section 4.

As used herein, “Change of Control of the Company” means and shall be deemed to have occurred if:

“Voting Securities or Security” means any securities of the Company which carry the right to vote in the election of, or participate in the appointment of, the Company’s directors.

5. Reimbursement of Business Expenses. During the term of this Agreement, upon submission of proper invoices, receipts or other supporting documentation satisfactory to the Company and in specific accordance with such guidelines as may be established from time to time by the Company, the Employee shall be reimbursed by the Company for all reasonable business expenses actually and necessarily incurred by the Employee on behalf of the Employer in connection with the performance of services under this Agreement.

6. Representation of Employee. The Employee represents and warrants that that he is not party to, or bound by, any agreement or commitment, or subject to any restriction, including but not limited to agreements related to previous employment containing confidentiality or non compete covenants, which in the future may have a possibility of adversely affecting the business of the Company or the performance by the Employee of his material duties under this Agreement.

7. Confidentiality. (For purposes of this Section 7, all references to the Company shall be deemed to include the Company’s subsidiary corporations.)

(a) Confidential Information. The Employee acknowledges that he will have knowledge of, and access to, proprietary and confidential information of the Company, including, without limitation, inventions, trade secrets, technical information, know-how, plans, specifications, methods of operations, financial and marketing information and the identity of customers and suppliers (collectively, the “Confidential

Information”), and that such information, even though it may be contributed, developed or acquired by the Employee, constitutes valuable, special and unique assets of the Company developed at great expense which are the exclusive property of the Company. Accordingly, the Employee shall not, either during or subsequent to the term of this Agreement, use, reveal, report, publish, transfer or otherwise disclose to any person, corporation or other entity, any of the Confidential Information without the prior written consent of the Company, except to responsible officers and employees of the Company and other responsible persons who are in a contractual or fiduciary relationship with the Company and who have a need for such information for purposes in the best interests of the Company, and except for such information which is or becomes of general public knowledge from authorized sources other than the Employee. The Employee acknowledges that the Company would not enter into this Agreement without the assurance that all such confidential and proprietary information will be used for the exclusive benefit of the Company.

(b) Return of Confidential Information. Upon the termination of Employee’s employment with the Company, the Employee shall promptly deliver to the Company all drawings, manuals, letters, notes, notebooks, reports and copies thereof and all other materials relating to the Company’s business.

8. Noncompetition. (For purposes of this Section 8, all references to the Company shall be deemed to include the Company’s subsidiary corporations). During the term set forth below, the Employee will not utilize his special knowledge of the business of the Company and his relationships with customers and suppliers of the Company to compete with the Company. During the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, the Employee shall not engage, directly or indirectly or have an interest, directly or indirectly, anywhere in the United States of America or any other geographic area where the Company does business or in which its products are marketed, alone or in association with others, as principal, officer, agent, employee, capital, lending of money or property, rendering of services or otherwise, in any business directly competitive with or similar to that engaged in by the Company (it being understood hereby, that the ownership by the Employee of 2% or less of the stock of any company listed on a national securities exchange shall not be deemed a violation of this Section 8). During the same period, the Employee shall not, and shall not permit any of his employees, agents or others under his control to, directly or indirectly, on behalf of himself or any other person, (i) call upon, accept business from, or solicit the business of any person who is, or who had been at any time during the preceding two years, a customer of the Company or any successor to the business of the Company, or otherwise divert or attempt to divert any business from the Company or any such successor, or (ii) directly or indirectly recruit or otherwise solicit or induce any person who is an employee of, or otherwise engaged by, the Company or any successor to the business of the Company to terminate his or her employment or other relationship with the Company or such successor.

9. Remedies. The restrictions set forth in Section 7 and 8 are considered by the parties to be fair and reasonable. The Employee acknowledges that the Company would

be irreparably harmed and that monetary damages would not provide an adequate remedy in the event of a breech of the provisions of Section 7 or 8. Accordingly, the Employee agrees that, in addition to any other remedies available to the Company, the Company shall be entitled to seek injunctive and other equitable relief to secure the enforcement of these provisions. If any provisions of Sections 7, 8 or 9 relating to the time period, scope of activities or geographic area of restrictions is declared by a court of competent jurisdiction to exceed the maximum permissible time period, scope of activities or geographic area, as the case may be, shall be provisions of Section 7, 8 or 9 other than those described in the preceding sentence are adjudicated to be invalid or unenforceable, the invalid or unenforceable provisions shall be deemed amended (with respect only to the jurisdiction in which such adjudication is made) in such manner as to render them enforceable and to effectuate as nearly as possible the original intentions and agreement of the parties.

10. Termination. This Agreement may be terminated prior to the expiration of the term set forth in Section 2 upon the occurrence of any of the events set forth in, and subject to the terms of, this Section 10.

(a) Death. This Agreement will terminate immediately and automatically upon the death of the Employee.

(b) Disability. This Agreement may be terminated at the Company’s option, immediately upon written notice to the Employee, if the Employee shall suffer a permanent disability. For the purpose of this Agreement, the term “permanent disability” shall mean the Employee’s inability to perform his duties under this Agreement for a period of 120 consecutive days or for an aggregate of 180 days, whether or not consecutive, in any twelve month period, due to illness, accident or any other physical or mental incapacity, as reasonably determined by the Board of Directors of the Company. In the event of termination for disability, the Employee will also be entitled to receive medical benefits generally available to other disabled employees of the Company.

(c) Cause. This Agreement may be terminated at the Company’s option, immediately upon written notice to the Employee, upon: (i) breach by the Employee of any material provision of this Agreement not cured within ten (10) days after written notice of such breach is given by the Company to the Employee; (ii) gross negligence or willful misconduct of the Employee in connection with the performance of his duties under this Agreement, or Employee’s willful refusal to perform any of his duties or responsibilities required pursuant to this Agreement; or (iii) fraud, criminal conduct or embezzlement by the Employee.

(d) Without Cause. This Agreement may be terminated pursuant to the terms of Section 2 or on thirty (30) days written notice (the thirtieth day following such notice being herein sometimes called the “Termination Date”) by the Company without cause, subject to the following provision.

If the Employee’s employment is terminated by the Company without Cause, or upon Disability, the Employee shall receive an amount (the “Severance Amount”) equal to the sum of the following: (i) twenty-four months’ Base Compensation; plus (ii) continuation of health insurance and other benefits at the expense of Company for the period for which the Employee could elect COBRA continuation coverage under the Company’s health insurance plans as a result of his termination of employment; plus (iii) the greater of (x) twenty-four months’ target bonus which Employee would have been entitled to receive for achieving budget for the year in which Employee’s employment was terminated and (y) the sum of the actual performance bonuses (excluding Discretionary Bonuses), if any, paid to Employee with respect to the two fiscal years immediately preceding the year in which Employee’s employment was terminated; plus (iv) full vesting of any outstanding stock options and the lapsing of any restrictions over any restricted shares owned by the Employee; provided, however, that if the Employee is terminated without Cause or if this Agreement is not renewed at the end of the Initial Term or any Renewal Term, the preceding subclause (iv) above shall not apply, except that all unvested stock options shall immediately vest as of the Termination Date. Employee will also be entitled to receive a cash payment in a lump sum within 10 days after termination of employment, or, if, on the date of such termination of employment the Employee is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the day after the expiration of six (6) months following such termination of employment. The amount of such payment shall be the actuarially determined value of the cost of coverage under the Company’s medical, dental and vision care plans for a period equal to the difference between 24 months and the period for which the Employee could elect COBRA continuation coverage under the Company’s health insurance plans.

The cash portion of the Severance Amount shall be paid to the Employee as promptly as practicable after the date of Termination and in no event later than ten (10) days after termination, provided that, if Employee is a “specified employee” within the meaning of Section 409A of the Code, at the time of his termination of employment, then (1) no later than ten (10) days after the date of Termination, Employee shall be paid the cash portion of the Severance Amount in an amount equal to no more than two times the lesser of (A) the sum of the Employee’s annualized compensation based upon the annual rate of pay for services provided to the Company for the year preceding the year in which the Employee’s employment terminates (adjusted for any increase that was expected to continue indefinitely if the Employee’s employment had not terminated) or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which the Employee’s employment terminates, and (2) any remaining Severance Amount shall be paid six (6) months and one (1) day following his termination of employment.

Payment of the Severance Amount shall be in lieu of all other financial obligations of the Company to the Employee and all other benefits in this Agreement shall cease as of the date of termination. The Employee shall have no obligation to seek other employment or otherwise mitigate damages hereunder. For the avoidance of doubt, it is understood that the Company will pay all amounts owed to Employee prior to the date of

termination, including incentive compensation earned up through the date of termination in the same manner as all other plan participants. Notwithstanding anything in the incentive compensation plan, Employee need not be employed at the date the incentive payments are made to be eligible for this payment. The employee and the company shall enter into a mutual release of claims against one another following the termination of employment.

(e) Excise Tax Gross-Up.

(i) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, distribution or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to Employee or for his benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (a “Payment”) would be subject, in whole or in part, to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Employee shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 10(e) and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment.

(ii) All determinations required to be made under this Section 10(e), including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Employee and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Employee’s employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Agreement, the “Accountants” shall mean PricewaterhouseCoopers LLP or another accounting firm mutually acceptable to the Company and Employee. For purposes of determining the amount of the Gross-Up Payment, Employee shall be deemed to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Employee’s adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Employee is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Employee of the Accountants’ determination. Any determination by the Accountants shall be binding upon the

Company and Employee, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 10(e) (an “Overpayment” or “Underpayment,” respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, Employee shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to Employee. In the event that the Company exhausts its remedies pursuant to Section 10(e) (iii) and Employee is required to make a payment of any Excise Tax, the Company shall promptly pay the Underpayment to or for Employee’s benefit.

(iii) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable after Employee is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which Employee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall:

(a) give the Company any information reasonably requested by the Company relating to such claim;

proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

Notwithstanding any other provision of this Section 10(e), (i) all taxes and related expenses described in this Section 10(e) shall be paid or reimbursed no later than the end of the year following the year in which the applicable taxes are remitted or, in the case of expenses with respect to which there is no remittance of taxes, no later than the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, and (ii) if the Employee is a “specified employee” within the meaning of Section 409A of the Code at the time of his termination of employment, no tax or related expense shall be paid or reimbursed hereunder during the six-month period beginning on the date of such termination of employment.

11.

Miscellaneous.

(a) Survival. The provisions of Sections 7, 8 and 9 shall survive the termination of this Agreement.

(b) Entire Agreement. This Agreement sets forth the entire understanding of the parties and merges and supersedes any prior or contemporaneous agreements between the parties pertaining to the subject matter hereof.

(c) Modification. This Agreement may not be modified or terminated orally; and no modification, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced; provided, however, that the Employee’s compensation may be increased at any time by the Company without in any way affecting any of the other terms and conditions of this Agreement, which in all other respects shall remain in full force and effect.

(d) Waiver. Failure of a party to enforce one or more of the provisions of this Agreement or to require at any time performance of any of the obligations hereof shall not be construed to be a waiver of such provisions by such party nor to in any way affect the validity of this Agreement or such party’s right thereafter to enforce any provision of this Agreement, not to preclude such party from taking any other action at any time which it would legally be entitled to take.

(e) Successors and Assigns. Neither party shall have the right to assign this Agreement, or any rights or obligations hereunder, without the consent of the other party.

(f) Communications. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been given at the time personally delivered or when mailed in any United States post office enclosed in a registered or certified postage prepaid envelope and addressed to the recipient’s address set forth below, or to such other address as any party may specify by notice to the other party; provided, however, that any notice of change of address shall be effective only upon receipt.


To the Company:		Jarden Corporation
		Suite B-302
		555 Theodore Fremd Avenue
		Rye, New York 10580
		Attention: Chief Executive Officer

To the Employee:		Mr. James E. Lillie

(g) Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity and enforceability of the other provisions of this Agreement and the provision held to be invalid or unenforceable shall be enforced as nearly as possible according to its original terms and intent to eliminate such invalidity or unenforceability.

(h) Jurisdiction; Venue. This Agreement shall be subject to the exclusive jurisdiction of the courts of New York County, New York. Any breach of any provision of this Agreement shall be deemed to be a breach occurring in the State of New York and the parties irrevocably and expressly agree to submit to the jurisdiction of the courts of the State of New York or the Federal Courts having concurrent geographic jurisdiction, for the purpose of resolving any disputes among them relating to this Agreement or the transactions contemplated by this Agreement.

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

(j) Effectiveness. This Agreement shall be effective and in full force and effect as of the date first written above.

(k) Compliance with Section 409A. Notwithstanding any other provision of this Agreement, for purposes of this Agreement, the Employee shall not be treated as having terminated employment with the Company unless and until the Employee has incurred a “separation from service” within the meaning of Section 409A of the Code and all amounts payable hereunder and benefits to be provided hereunder shall be paid and/or provided in compliance with Section 409A of the Code or in accordance with an applicable exemption from Section 409A of the Code.

IN WITNESS WHEREOF, each of the parties hereto have duly executed this Agreement as of the date set forth above.

JARDEN CORPORATION

/s/ Ian G. H. Ashken

Name: Ian G. H. Ashken

Title: Vice Chairman and Chief Financial Officer

/s/ James E. Lillie

JAMES E. LILLIE

EX-10.4 5 dex104.htm RESTRICTED STOCK AWARD AGREEMENT, MARTIN E. FRANKLIN Restricted Stock Award Agreement, Martin E. Franklin

Exhibit 10.4

JARDEN CORPORATION

RESTRICTED STOCK AWARD AGREEMENT

This RESTRICTED STOCK AWARD AGREEMENT, dated as of the 5^th day of January, 2011 (the “Agreement”), by and between Jarden Corporation, a Delaware corporation (the “Corporation”), and Martin E. Franklin (the “Restricted Stockholder”).

W I T N E S S E T H :

WHEREAS, the Restricted Stockholder is an employee of the Corporation;

WHEREAS, the Restricted Stockholder entered into the Fourth Amended and Restated Employment Agreement, dated as of January 5, 2011 (the “Employment Agreement”), by and between the Corporation and the Restricted Stockholder;

WHEREAS, pursuant to the terms of the Employment Agreement, the Corporation is obligated to grant to the Restricted Stockholder certain performance based equity awards in the form of restricted shares of common stock, par value $0.01 per share (the “Common Stock”), of the Corporation (the “Restricted Stock”) under the Corporation’s 2009 Stock Incentive Plan (the “Stock Incentive Plan”), based on the long-term framework for the Corporation adopted by the Compensation Committee; and

WHEREAS, the parties hereto desire to enter into this Agreement on the terms hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, the Corporation and the Restricted Stockholder hereby agree as follows:

1. Granting of Restricted Shares. (a) Notwithstanding anything to the contrary in the Employment Agreement, the Corporation hereby grants to the Restricted Stockholder, effective as of the date hereof (the “Date of Grant”), 230,000 restricted shares of Common Stock (the “Performance Shares”), subject to all of the terms and conditions of this Agreement, the Employment Agreement and the Stock Incentive Plan. The restrictions on the Performance Shares shall lapse, and the Performance Shares shall be fully vested, on the Vesting Date as set forth in Section 2 below.

(b) All capitalized terms used herein but not defined shall have the meanings given to such terms in the Stock Incentive Plan.

2. Vesting Period. The Performance Shares shall no longer be subject to the restrictions set forth herein on the earlier to occur of (such date, the “Vesting Date”):

(a)

the last day of any five consecutive trading day period during which the average closing price of the Corporation’s common stock on the New York Stock Exchange (or such other securities exchange on which the Corporation’s Common Stock may then be traded) equals or exceeds thirty-four dollars ($34.00); or

(b)

the date there is a Change of Control of the Corporation (as defined in the Employment Agreement).

Except as otherwise provided in the Employment Agreement, in the event the Restricted Stockholder’s employment is terminated by the Corporation or voluntarily by the Restricted Stockholder, the Restricted Stockholder will surrender all of the unvested Performance Shares issuable pursuant to the terms hereof.

The number of shares granted and the stock price referred to above shall be adjusted for changes in the Common Stock as outlined in Section 18.4 of the Stock Incentive Plan or as otherwise mutually agreed in writing between the parties.

3. Non-Transferability. The Performance Shares that remain subject to the restrictions set forth herein may not be sold, transferred, assigned, pledged or otherwise encumbered or disposed of by the Restricted Stockholder until such restrictions shall have lapsed in accordance with the terms hereof or in the event of a transfer, assignment, pledge or other disposal, such event has been approved by the Compensation Committee of the Board of Directors. Restricted Stockholder agrees that, to the extent the restrictions set forth herein lapse with respect to any of the Performance Shares, such unrestricted Performance Shares may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of by the Restricted Stockholder, subject to applicable law, regulation or stock exchange rule, provided that Restricted Stockholder shall be entitled to satisfy the minimum withholding tax obligation (or such greater withholding amount as the Compensation Committee of the Board of Directors may approve) by electing to have the Corporation withhold from the Performance Shares that number of shares having a Fair Market Value (as defined in the Stock Incentive Plan) equal to the minimum amount required to be withheld (or such greater withholding amount as the Compensation Committee of the Board of Directors may approve), determined on the date that the amount of tax to be withheld is to be determined.

4. No Right to Continued Employment. Nothing in this Agreement shall confer upon the Restricted Stockholder any right with respect to continuance of employment by the Corporation, nor shall it interfere in any way with the right of Corporation to terminate the Restricted Stockholder’s employment at any time. This Agreement does not constitute an employment contract. This Agreement does not guarantee employment for the length of time of the vesting period or for any portion thereof.

5. Restricted Stockholder Bound by Stock Incentive Plan. The Restricted Stockholder hereby acknowledges receipt of a copy of the Stock Incentive Plan and agrees to be bound by all the terms and provisions thereof. In the event of any conflict between the provisions of this Agreement and the provisions of the Stock Incentive Plan, the provisions of this Agreement shall control. The Restricted Stockholder agrees to accept as binding, conclusive, and final all decisions or interpretations of the Committee upon any questions arising under the Stock Incentive Plan.

6. Section 83(b) Election. If the Restricted Stockholder files an election with the Internal Revenue Service to include the Fair Market Value of any Performance Shares in gross income as of the Date of Grant, the Restricted Stockholder agrees to promptly furnish the Corporation with a copy of such election, together with the amount of any federal, state, local or other taxes required to be withheld to enable the Corporation to claim an income tax deduction with respect to such election.

7. Withholding Taxes. The Performance Shares will be subject to any federal, state, or local taxes of any kind required by law at the time the Performance Shares vest and become nonforfeitable. By accepting the Performance Shares, the Restricted Stockholder agrees to promptly satisfy federal, state and local withholding requirements, when and if applicable, for such Performance Shares by making a cash payment to the Corporation equal to the required withholding amount or by electing to have the Corporation withhold from the Performance Shares that number of shares having a Fair Market Value (as defined in the Stock Incentive Plan) equal to the minimum amount required to be withheld (or such greater withholding amount as the Compensation Committee of the Board of Directors may approve), determined on the date that the amount of tax to be withheld is to be determined.

8. Notices. Any notice required to be given or delivered to the Corporation under the terms of this Agreement shall be in writing and addressed to the Corporate Secretary of the Corporation at its principal corporate offices at 555 Theodore Fremd Avenue, Suite B-302, Rye, New York 10580. Any notice required to be given or delivered to the Restricted Stockholder shall be in writing and addressed to the Restricted Stockholder at the address set forth on the signature page hereto or to such other address as such party may designate in writing from time to time to the Corporation. All notices shall be deemed to have been given or delivered upon: personal delivery; three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); one (1) business day after deposit with any return receipt express courier (prepaid); or one (1) business day after transmission by facsimile.

9. Interpretation. 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.

10. Governing Law. This Agreement 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.

11. Assignment. 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.

12. 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.

(signature page follows)

IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed by a duly authorized officer and the Restricted Stockholder has executed this Agreement as of the date first set forth above.


JARDEN CORPORATION

By:		/s/ Ian G.H. Ashken
		Name: Ian G.H. Ashken
		Title: Vice Chairman and Chief Financial Officer

		RESTRICTED STOCKHOLDER

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

		Address:

EX-10.5 6 dex105.htm RESTRICTED STOCK AWARD AGREEMENT, IAN G.H. ASHKEN Restricted Stock Award Agreement, Ian G.H. Ashken

Exhibit 10.5

JARDEN CORPORATION

RESTRICTED STOCK AWARD AGREEMENT

This RESTRICTED STOCK AWARD AGREEMENT, dated as of the 5^th day of January, 2011 (the “Agreement”), by and between Jarden Corporation, a Delaware corporation (the “Corporation”), and Ian G.H. Ashken (the “Restricted Stockholder”).

W I T N E S S E T H :

WHEREAS, the Restricted Stockholder is an employee of the Corporation;

WHEREAS, the parties hereto desire to enter into this Agreement on the terms hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, the Corporation and the Restricted Stockholder hereby agree as follows:

1. Granting of Restricted Shares. (a) Notwithstanding anything to the contrary in the Employment Agreement, the Corporation hereby grants to the Restricted Stockholder, effective as of the date hereof (the “Date of Grant”), 95,000 restricted shares of Common Stock (the “Performance Shares”), subject to all of the terms and conditions of this Agreement, the Employment Agreement and the Stock Incentive Plan. The restrictions on the Performance Shares shall lapse, and the Performance Shares shall be fully vested, on the Vesting Date as set forth in Section 2 below.

(b) All capitalized terms used herein but not defined shall have the meanings given to such terms in the Stock Incentive Plan.

2. Vesting Period. The Performance Shares shall no longer be subject to the restrictions set forth herein on the earlier to occur of (such date, the “Vesting Date”):

(a)

(b)

the date there is a Change of Control of the Corporation (as defined in the Employment Agreement).

9. Interpretation. 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.

11. Assignment. 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.

12. 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.

(signature page follows)


		JARDEN CORPORATION

By:		/s/ Martin E. Franklin
		Name: Martin E. Franklin
		Title: Chairman and Chief Executive Officer

		RESTRICTED STOCKHOLDER

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

		Address:

EX-10.6 7 dex106.htm RESTRICTED STOCK AWARD AGREEMENT, JAMES E. LILLIE Restricted Stock Award Agreement, James E. Lillie

Exhibit 10.6

JARDEN CORPORATION

RESTRICTED STOCK AWARD AGREEMENT

This RESTRICTED STOCK AWARD AGREEMENT, dated as of the 5^th day of January, 2011 (the “Agreement”), by and between Jarden Corporation, a Delaware corporation (the “Corporation”), and James E. Lillie (the “Restricted Stockholder”).

W I T N E S S E T H :

WHEREAS, the Restricted Stockholder is an employee of the Corporation;

WHEREAS, the Restricted Stockholder entered into the Third Amended and Restated Employment Agreement, dated as of January 5, 2011 (the “Employment Agreement”), by and between the Corporation and the Restricted Stockholder;

WHEREAS, the parties hereto desire to enter into this Agreement on the terms hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, the Corporation and the Restricted Stockholder hereby agree as follows:

1. Granting of Restricted Shares. (a) Notwithstanding anything to the contrary in the Employment Agreement, the Corporation hereby grants to the Restricted Stockholder, effective as of the date hereof (the “Date of Grant”), 70,000 restricted shares of Common Stock (the “Performance Shares”), subject to all of the terms and conditions of this Agreement, the Employment Agreement and the Stock Incentive Plan. The restrictions on the Performance Shares shall lapse, and the Performance Shares shall be fully vested, on the Vesting Date as set forth in Section 2 below.

(b) All capitalized terms used herein but not defined shall have the meanings given to such terms in the Stock Incentive Plan.

2. Vesting Period. The Performance Shares shall no longer be subject to the restrictions set forth herein on the earlier to occur of (such date, the “Vesting Date”):

(a)

(b)

the date there is a Change of Control of the Corporation (as defined in the Employment Agreement).

9. Interpretation. 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.

11. Assignment. 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.

12. 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.

(signature page follows)


		JARDEN CORPORATION

By:		/s/ Ian G.H. Ashken
		Name: Ian G.H. Ashken
		Title: Vice Chairman and Chief Financial Officer

		RESTRICTED STOCKHOLDER

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

		Address:

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