Exhibit 10.6(c)
EMPLOYMENT PROTECTION AGREEMENT
THIS EMPLOYMENT PROTECTION AGREEMENT (this "Agreement") is entered into
on December 8, 1997, by and between AMERICAN SAFETY RAZOR COMPANY, a Delaware
corporation (the "Company"), and XXXXX X. XXXX, an individual ("Executive").
WITNESSETH:
WHEREAS, Executive is currently employed as the Senior Vice President-
Consumer Products of the Company;
WHEREAS, the board of directors of the Company considers it to be in
the best interests of the Company to xxxxxx the continued employment of certain
key management personnel; and
WHEREAS, the board of directors of the Company recognizes that the
possibility of the sale of the Company exists and, as a result, the board of
directors has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication to the Company of Executive as
a member of the Company's management team;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
a. "Cause" shall mean any one of the following: (i) the conviction of
Executive of any crime or criminal offense involving monies or other property or
any felony; (ii) the breach by Executive of any of his fiduciary duties of
loyalty as an officer of the Company; (iii) the repeated and willful failure of
Executive diligently, faithfully and competently perform his duties; or (iv) the
material violation by Executive of any of the terms of any agreement with the
Company after a reasonable notice of such violation and an opportunity to cure.
b. "Change of Control" shall mean (a) the purchase or other
acquisition, pursuant to the sale process recently approved by the board of
directors of the Company, by any person(s) or entity, within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (excluding, for this purpose, the Jordan Group (defined herein),
the Company or its subsidiaries or any employee benefit plan of the Company or
its subsidiaries), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of (i) 50% or more of the then-outstanding
shares of voting common stock of the Company, (ii) all or substantially all of
the assets of the Company or (iii) that number of shares of voting common stock
owned by the members of the Jordan Group which results in the Jordan
Group beneficially owning less than three and one-half percent (3.5%) of the
then outstanding voting common stock of the Company, or (b) pursuant to such
sale process, resignation or removal of all the members of the Jordan Group from
the Board of Directors of the Company. Notwithstanding the foregoing, a sale,
spin-off, joint venture or other business combination by the Company, which
involves one or more divisions or subsidiaries of the Company and is approved by
a majority vote of the board of directors of the Company, shall not be deemed to
be a Change of Control.
c. "Effective Date" shall mean the first date on which a Change of
Control occurs. Anything in this Agreement to the contrary notwithstanding, if
Executive's employment with the Company is terminated by the Company, and such
termination: (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control; or (ii) otherwise arose in
connection with, or in anticipation of, a Change of Control, then for all
purposes of this Agreement the "Effective Date" shall mean the date immediately
prior to the date of such termination of employment.
x. Xxxxxx Group" shall collectively mean Jordan Industries, Inc., The
Jordan Company, Leucadia Investors Inc., Jordan/Zalaznick Capital Corporation,
MCIT PLC and their respective partners, shareholders, direct and indirect
subsidiaries, and any other Person that directly or indirectly, through one or
more intermediaries, controls or is controlled by or is under common control
with them, and Xxxx X. Xxxxxx XX, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxxx, Xxxx X.
Xxxxxx and Xxxxxxxx X. Xxxxxxx. For purposes of this definition, the term
"Person" shall include any single individual, any single entity and, in either
case, their "Affiliates" as that term is defined under the Exchange Act.
2. Duties. While employed by the Company, Executive shall
diligently, faithfully and competently perform the duties of the office of
Senior Vice President-Consumer Products and shall devote as much of his
productive time and abilities to the performance of such duties as is required
to accomplish such duties.
3. Compensation; Change of Control Payment.
a. While Executive is employed by the Company, the Company
will pay Executive such compensation and benefits as agreed upon from time to
time by the parties hereto.
b. In the event of a Change of Control, on an Effective Date
the Company shall pay Executive a lump sum in cash consisting of, (i) one year's
base salary (excluding benefits) at the rate in effect as of the Effective Date
and (ii) an amount equal to 100% of Executive's "target" bonus
(excluding stock bonuses or stock options) for the fiscal year in which the
Change of Control occurs (items (i) and (ii) are collectively referred to as the
"Change of Control Payment"). The payments to Executive by the Company pursuant
to this Section 3(b) shall be in addition to any salary, bonus and benefits
payable to or accrued to Executive as of an Effective Date.
4. Severance Payment. Subject to Sections 5 and 6 hereof, if as of an
Effective Date (i) Executive is not hired by the Company or its successor to
serve as Senior Vice President-Consumer Products or in a similar position, or
within twenty-four months after such Effective Date, (ii) Executive's employment
is terminated by the Company or its successor for any reason other than the
voluntary termination by Executive, termination of Executive for Cause, or the
death of Executive, (iii) the location of the office where Executive is required
to perform the majority of his duties for the Company is relocated, without
Executive's consent, to a location more than 70 miles from Verona, Virginia or
(iv) without Executive's concurrence, Executive's duties as set forth in Section
2 hereof or Executive's compensation during the twenty-four months prior to an
Effective Date are materially reduced (items (i)-(iv) each being referred to as
a "Termination Event"), the Company shall pay Executive an amount equal to the
Change of Control Payment (the "Severance Payment"). All amounts payable by the
Company to Executive pursuant to this Section 4 shall be in addition to any
other amounts payable under and shall be paid, at the option of Executive, (A)
in a lump sum in cash within 10 days of the date of the Termination Event or (B)
in accordance with the payroll schedule of the Company in effect as of the date
of the Termination Event, provided, however, if prior to the full payment of the
Severance Payment, Executive becomes employed by another entity, upon
Executive's delivery of written notice to the Company of such employment, the
Company shall pay Executive a lump sum in cash equal to the unpaid amount of the
Severance Payment. Executive shall exercise his payment option by delivering
written notice to the Company within five (5) days after the date of the
Termination Event, provided, however, in the event Executive fails to deliver
such written notice, the Severance and shall be in addition to any other amounts
payable under this Agreement.
5. Release. As a condition to receiving the amounts payable under
Section 4, Executive must provide the Company with a release, satisfactory to
the Company in its reasonable discretion, of all claims, charges and causes of
action Executive may have arising out of or relating in any way to Executive's
employment by the Company and its affiliated companies and the termination of
such employment.
6. Termination. Except as may otherwise be provided under any other
written agreement between Executive and the Company, the employment of Executive
by the Company is "at will" and, prior to an Effective Date, Executive's
employment may be terminated by either Executive or the Company, in which case
Executive shall have no further rights under this Agreement and the Company
shall be released from its obligations under this Agreement. In addition, unless
a Change of Control has occurred prior thereto, this Agreement shall expire on
December 31, 2002 unless this Agreement is sooner terminated as provided for
above, in which case Executive shall
have no further rights under this Agreement and the Company shall be released
from its obligations under this Agreement.
7. Restrictive Covenants. In consideration of this Agreement, Executive
agrees that for the one year period after his employment is terminated for any
reason, Executive shall not:
a. directly or indirectly, either individually or as a principal,
partner, agent, employee, employer, consultant, stockholder, joint venturer, or
investor, or as a director or officer of any corporation or association, or in
any other manner or capacity whatsoever, engage in, assist or have any active
interest in a business located anywhere in United States, Israel, Germany, the
Dominican Republic, Puerto Rico, Canada, Mexico or the United Kingdom that
manufactures or distributes razor blades, razors, cotton fiber products in the
health and beauty aids business segment, or foot care or soap products in the
health and beauty aids business segment, or that otherwise competes with or is
substantially similar in concept, design, format, or otherwise to the business
conducted by the Company and its subsidiaries on the date hereof or at any time
during the term of this covenant. Notwithstanding the above, this paragraph
shall not be construed to prohibit Executive from owning less than three percent
(3%) of the outstanding securities of a corporation which is publicly traded on
a securities exchange or over-the-counter.
b. directly or indirectly, either individually, or as a principal,
partner, agent, employee, employer, consultant, stockholder, joint venturer, or
investor, or as a director or officer of any corporation or association, or in
any other manner or capacity whatsoever, (i) divert or attempt to divert from
the Company any business with any customer or account with which Executive had
any contact or association, which was under the supervision of Executive, or the
identity of which was learned by Executive as a result of Executive's employment
with the Company, or (ii) induce any salesperson, distributor, supplier, vendor,
manufacturer, representative, agent, jobber or other person transacting business
with the Company to terminate their relationship or association with the
Company, or to represent, distribute or sell services or products in competition
with services or products of the Company, or (iii) induce or cause any employee
of the Company or its affiliates to leave the employ of the Company or any
affiliate of the Company.
8. Successors.
a. This Agreement shall inure to the benefit of and be enforceable by
Executive and Executive's legal representative.
b. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
c. The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation, sale of assets or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
9. Miscellaneous.
a. This Agreement shall be governed by and construed in accordance with
the laws of the state of Virginia, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect.
b. This Agreement may be amended, changed or modified only pursuant to
a written document signed by both the Company and Executive.
c. All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Executive:
Xxxxx X. Xxxx
0000 Xxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000
If to the Company:
American Safety Razor Company
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
Notices and communications shall be effective at the time they are given in the
foregoing manner.
d. The Company shall withhold from any amounts payable under this
Agreement such Federal,
state, local or foreign taxes as may be required to be withheld pursuant to any
applicable law or regulation.
e. A party's failure to insist upon strict compliance with any
provision hereof or any other provision of this Agreement or the failure to
assert any right hereunder shall not be deemed to be a waiver of such provision
or right or any other provision or right of this Agreement.
f. If any legal action or other proceeding is commenced to enforce or
interpret any provision of, or otherwise relating to this Agreement, the losing
party shall pay the prevailing party's reasonable expenses incurred in the
investigation of any claim leading to the proceeding, preparation for and
participation in the proceeding, any appeal or other post judgment motion and
any action to enforce or collect the judgment, including contempt, garnishment,
levy, discovery or bankruptcy. "Expenses" shall include, without limitation,
reasonable court or other proceeding costs and reasonable experts' and
reasonable attorneys' fees and their expenses. The phrase "prevailing party"
shall mean the party who is determined in the proceeding to have prevailed and
who prevails by dismissal, default or otherwise.
IN WITNESS WHEREOF, the foregoing Agreement was executed on December 8,
1997.
AMERICAN SAFETY RAZOR COMPANY
By:/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman of
the Board and Chief Executive Officer
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
