AMENDMENT NO. 3
Dated as of September 23, 1998
to
TRANSACTION AGREEMENT
Dated as of May 10, 1998
By and Between
THE BLACK & XXXXXX CORPORATION
and
WINDMERE-DURABLE HOLDINGS, INC.
AMENDMENT NO. 3 TO TRANSACTION AGREEMENT
This Amendment No. 3 to Transaction Agreement (this "Amendment") is
made as of the 23rd day of September 1998, by and between The Black & Xxxxxx
Corporation, a Maryland corporation ("Seller"), and Windmere-Durable Holdings,
Inc., a Florida corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into a Transaction Agreement
dated as of May 10, 1998, as amended by Amendment No. 1 to Transaction Agreement
dated as of June 26, 1998 and by a letter agreement dated as of July 23, 1998
(as amended, the "Agreement"), pursuant to which Seller transferred and caused
the Affiliated Transferors to transfer substantially all of the assets held,
owned by or used to conduct the HPG Business, and assigned certain liabilities
associated with the HPG Business, to Buyer or Buyer Companies designated by
Buyer, and Buyer received and caused such designated Buyer Companies to receive
such assets and assume such liabilities upon the terms and subject to the
conditions set forth in the Agreement; and
WHEREAS, Seller and Buyer desire to further amend the Agreement in
accordance with the terms of this Amendment to correct a typographical error in
the Agreement to ensure that the language in the Agreement properly reflects the
intentions of Seller and Buyer;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, the parties agree as follows:
Section 1. Capitalized terms used but not defined herein have the
meanings given to them in the Agreement.
Section 2. Section 5.06(e) of the Agreement is deleted in its entirety
and the following is inserted in its place and stead:
(e) From and after the date of this Agreement until the first
anniversary of the Closing Date, Seller Companies shall not, without
prior written approval of Buyer employ any exempt (within the meaning
of the Fair Labor Standards Act) Transferred Employee. In addition,
from and after the date of this Agreement until the fifth anniversary
of the Closing Date, no Seller Company shall, without the prior written
approval of Buyer, directly or indirectly solicit any individual who
was an exempt (within the meaning of the Fair Labor Standards Act)
Transferred Employee to terminate his or her employment relationship
with Buyer or Buyer Companies; provided, however, that the foregoing
shall not apply to individuals hired as a result of the use of an
independent employment agency (so long as the agency was not directed
to solicit a particular individual or a class of individuals that could
only be satisfied by employees of Buyer Companies) or as a result of
the use of a general solicitation (such as an advertisement) not
specifically directed to employees of Buyer Companies. From and after
the date of this Agreement until the fifth anniversary of the Closing
Date, no Seller Company will induce or seek to induce any contractor,
supplier, client or customer of Buyer or Buyer Companies to terminate
their relationship with Buyer or Buyer Companies in respect of the HPG
Business.
Section 3. Section 6.06 of the Agreement is deleted in its entirety and
the following is inserted in its place and stead:
Section 6.06 Nonsolicitation of Employees, etc. From and after
the date of this Agreement until the fifth anniversary of the Closing
Date, neither Buyer nor any Buyer Companies shall, without the prior
written approval of Seller, directly or indirectly solicit any
individual who is an exempt (within the meaning of the Fair Labor
Standards Act) employee of a Seller Company to terminate his or her
employment relationship with Seller Companies; provided, however, that
the foregoing shall not apply to individuals hired as a result of the
use of an independent employment agency (so long as the agency was not
directed to solicit a particular individual or a class of individuals
that could only be satisfied by employees of Seller Companies) or as a
result of the use of a general solicitation (such as an advertisement)
not specifically directed to employees of Seller Companies. Buyer
recognizes and agrees that a breach by Buyer or Buyer Companies of any
of the covenants and agreements in this Section 6.06 could cause
irreparable harm to Seller, that Seller's remedies at law in the event
of such breach would be inadequate, and that, accordingly, in the event
of such breach a restraining order or injunction or both may be issued
against Buyer or Buyer Companies, in addition to any other rights and
remedies that may be available to Seller under Applicable Law. If this
Section 6.06 is more restrictive than permitted by Applicable Laws of
the jurisdiction in which Seller seeks enforcement hereof, this Section
6.06 shall be limited to the extent required to permit enforcement
under such Applicable Laws.
IN WITNESS WHEREOF, the parties hereto caused this Amendment to be duly
executed by their respective authorized officers on the day and year first above
written.
THE BLACK & XXXXXX CORPORATION
By: /s/
WINDMERE-DURABLE HOLDINGS, INC.
By: /s/
