EXHIBIT 10.ii
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of December 16, 1998 between Sunbeam
Corporation, a Delaware corporation (the "Company") and Xxxxx X. Xxxxxx (the
"Executive").
The Company wishes to employ the Executive, and the Executive wishes to
accept such employment, on the terms and conditions set forth in this Agreement.
Accordingly, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1. EMPLOYMENT, DUTIES. The Company hereby employs the Executive for
the Term (as defined in Section 2.1), to render exclusive and full-time services
to the Company as Vice President , General Counsel and Corporate Secretary or in
such other executive position as may be mutually agreed upon by the Company and
the Executive, and to perform such other duties consistent with such position as
may be assigned to the Executive by the Board of Directors of the Company (the
"Board").
1.2. ACCEPTANCE. The Executive hereby accepts such employment and
agrees to render the services described above. During the Term, the Executive
agrees to serve the Company faithfully and to the best of the Executive's
ability, to devote the Executive's entire business time, energy and skill to
such employment, and to use the Executive's best efforts, skill and ability to
promote the Company's interests. The Executive further agrees to accept
election, and to serve during all or any part of the Term, as an officer or
director of the Company and of any subsidiary or affiliate of the Company,
without any compensation therefor other than that specified in this Agreement,
if elected to any such position by the shareholders or by the Board of Directors
of the Company or of any subsidiary or affiliate, as the case may be. The
Executive hereby represents and warrants that the Executive is not subject to
any other agreement, including without limitation any agreement not to compete
or confidentiality agreement, which would be violated by the Executive's
performance of services hereunder.
1.3. LOCATION. The duties to be performed by the Executive hereunder
shall be performed primarily at the office of the Company in Palm Beach County,
Florida, subject to reasonable travel requirements on behalf of the Company.
2. TERM OF EMPLOYMENT; CERTAIN POST-TERM BENEFITS.
2.1. THE TERM. The term of the Executive's employment under this
Agreement (the "Term") shall commence on January 1, 1999 and shall end on
December 31, 2000.
2.2. SPECIAL CURTAILMENT. The Term shall end earlier than the original
termination date provided in Section 2.1, if sooner terminated pursuant to
Section 4.
3. COMPENSATION; BENEFITS.
3.1. SALARY. As compensation for all services to be rendered pursuant
to this Agreement, the Company agrees to pay the Executive during the Term a
base salary, payable semi-monthly in arrears, at the annual rate of not less
than $275,000 (the "Base Salary"), less such deductions or amounts to be
withheld as required by applicable law and regulations. In the event that the
Company, in its sole discretion, from time to time determines to increase the
Base Salary, such increased amount shall, from and after the effective date of
the increase, constitute "Base Salary" for purposes of this Agreement.
3.2. ANNUAL BONUS. In addition to the amounts to be paid to the
Executive pursuant to Section 3.1, the Executive will be eligible to receive a
performance-based bonus with respect to each year of the Term commencing in
1999, based upon a target bonus opportunity of 50% of Base Salary, payable
within 90 days following the end of the Company's fiscal year. Performance goals
for such bonuses shall be determined by the Compensation Committee of the Board
of Directors
3.3. GUARANTEED BONUS. For 1998, the Executive shall receive a
guaranteed bonus equal to $112,500 (the "1998 Bonus"), payable on or before
January 15, 1999.
3.4. BUSINESS EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable expenses actually incurred or paid by the Executive
during the Term in the performance of the Executive's services under this
Agreement, upon presentation of expense statements or vouchers or such other
supporting information as the Company customarily may require of its officers
PROVIDED, HOWEVER, that the maximum amount available for such expenses during
any period may be fixed in advance by the Chairman or Vice Chairman of the Board
of Directors or the Board of Directors.
3.5. VACATION. During the Term, the Executive shall be entitled to a
vacation period or periods of four weeks taken in accordance with the vacation
policy of the Company during each year of the Term. Vacation time not used by
the end of a year shall be forfeited.
3.6. FRINGE BENEFITS. During the Term, the Executive shall be entitled
to all benefits for which the Executive shall be eligible under any qualified
pension plan, 401(k) plan, group insurance or other so-called "fringe" benefit
plan which the Company provides to its employees generally, together with
executive medical benefits for the Executive, the Executive's spouse and the
Executive's children as from time to time in effect for officers of the Company
generally. The Executive shall be entitled to participate in the Company's
relocation program in connection with entering into this Agreement and shall be
entitled to a car allowance in the amount of $1,000/month.
3.7. STOCK OPTIONS. The Company shall grant to the Executive on the
date hereof, subject to the receipt of shareholder approval to the extent
required under (1) Section 162(m) of the Internal Revenue Code of 1986, as
amended, (2) the terms of the Amended and Restated Sunbeam Corporation Stock
Option Plan (the "Option Plan"), if the grant is to be made under such plan, or
(3) the shareholder approval policy of the New York Stock Exchange, which
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shareholder approval shall be requested by the Company when it next solicits
proxies from its shareholders, non-qualified stock options (the "Options") with
a scheduled 10-year term to purchase shares of the common stock of the Company,
par value $.01 per share. The Options shall be granted in an amount and at the
exercise price as set forth on Appendix I to this Agreement. The Options shall
vest and become exercisable in full on December 31, 2000 (if the Executive
remains employed pursuant to this Agreement as of such date) or, to the extent
the Option is outstanding, upon a "Change in Control" of the Company. The
Options shall be subject to earlier vesting or forfeiture as set forth in
Section 4. The Options shall be subject to all other terms and conditions as set
forth in an Option Agreement between the Company and the Executive. For purposes
of this Agreement, Change in Control shall have the meaning set forth in the
Option Plan as in effect as of the date of this Agreement.
3.8. ADDITIONAL BENEFITS. During the Term, the Executive shall be
entitled to such additional benefits generally provided to other senior
executives of the Company.
4. TERMINATION.
4.1. DEATH. If the Executive shall die during the Term, the Term shall
terminate and no further amounts or benefits shall be payable hereunder, except
that the Executive's legal representatives shall be entitled to receive
continued payments in an amount equal to 60% of the Base Salary, in the manner
specified in Section 3.1, until the longer of 12 months or the end of the Term
(as in effect immediately prior to the Executive's death). The Options shall
become vested and exercisable as of the Executive's death during the Term
(provided, that, to the extent shareholder approval continues to be required
under Section 3.7, such accelerated vesting and exercisability shall occur upon
such approval), and shall remain exercisable for three years following the later
of such death during the Term or the receipt of any required shareholder
approval with respect to such Options, by the beneficiary designated by the
Executive on a form prescribed for such purpose by the Company, or in the
absence of such designation by the Executive's legal representative.
4.2. DISABILITY. If during the Term the Executive shall become
physically or mentally disabled, whether totally or partially, such that the
Executive is unable to perform the Executive's services hereunder for (i) a
period of six consecutive months or (ii) for shorter periods aggregating six
months during any twelve month period, the Company may at any time after the
last day of the six consecutive months of disability or the day on which the
shorter periods of disability shall have equalled an aggregate of six months, by
written notice to the Executive (but before the Executive has recovered from
such disability), terminate the Term and no further amounts or benefits shall be
payable hereunder, except that the Executive shall be entitled to receive
continued payments in an amount equal to 60% of the Base Salary, in the manner
specified in Section 3.1, until the longer of 12 months or the end of the Term
(as in effect immediately prior to such termination). Upon the Executive's
termination for disability, the Options shall, subject to the receipt of any
required shareholder approval under Section 3.7, continue to vest and become
exercisable pursuant to their original vesting schedule, and shall remain
exercisable for three years following vesting. If the Executive shall die before
receiving all payments to be made by the Company in accordance with this Section
4.2, such payments shall be
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made to the beneficiary designated by the Executive on a form prescribed for
such purpose by the Company, or in the absence of such designation to the
Executive's legal representative.
4.3. CAUSE/VOLUNTARY TERMINATION. In the event of gross neglect by the
Executive of the Executive's duties hereunder, conviction of the Executive of
any felony, conviction of the Executive of any lesser crime or offense involving
the property of the Company or any of its subsidiaries or affiliates, willful
misconduct by the Executive in connection with the performance of any material
portion of the Executive's duties hereunder, a willful breach by the Executive
of Sections 5, 6 or 7 or any other material provision of this Agreement or any
other conduct on the part of the Executive which would make the Executive's
continued employment by the Company materially prejudicial to the best interests
of the Company, the Company may at any time by written notice to the Executive
terminate the Term and, upon such termination, this Agreement shall terminate
and the Executive shall be entitled to receive no further amounts or benefits
hereunder, except any as shall have been earned to the date of such termination
and owed to the Executive. In the event the Executive voluntarily terminates
employment (other than pursuant to Section 4.4 as a result of a breach of this
Agreement by the Company), this Agreement shall terminate and the Executive
shall be entitled to receive no further amounts or benefits hereunder, except
any as shall have been earned by and owed to the Executive as of the date of
such termination. Upon a termination of the Executive's employment under this
Section 4.3, all unvested Options shall be immediately forfeited.
4.4. COMPANY BREACH. In the event of the breach of any material
provision of this Agreement by the Company, the Executive shall be entitled to
terminate the Term upon 60 days' prior written notice to the Company. Upon such
termination, or in the event the Company terminates the Term or this Agreement
other than pursuant to the provisions of Sections 4.2 or 4.3, the Company shall
continue to provide the Executive (i) payments of Base Salary, in the manner and
amount specified in Section 3.1, (ii) an amount equal to the Executive's target
bonus opportunity percentage as in effect as of the date of termination for any
year in which bonuses are paid to other members of the Senior Corporate
Management to the extent such bonuses are paid, multiplied by the Executive's
Base Salary as of the date of termination, payable with respect to each
remaining bonus period which would otherwise have ended during the Term (the
"Full Bonus Periods"), and (iii) medical, dental, life and long-term disability
insurance benefits in the manner and amounts specified in Sections 3.6 (provided
that the Executive shall continue to bear the cost of such benefits required to
be paid by employees) or, for a period of twelve months after the last day of
the month in which termination described in this Section 4.4 occurred, whichever
is longer (the "Damage Period"); PROVIDED, HOWEVER, that if the Executive
becomes reemployed with another employer and is eligible to receive medical or
other welfare benefits under another employee-provided plan, the medical and
other welfare benefits described herein shall be secondary to those provided
under such other plan during such applicable period of eligibility. In addition,
upon such termination of employment, each of the Options shall immediately vest
and become exercisable in an amount equal to (a) the number of shares subject to
such Option, multiplied by (b) (i) the number of full and partial months during
the Term prior to the Executive's termination of employment, divided by (ii)
twenty-four. The vested portion of the Options shall remain exercisable for
three years following the later of the Executive's termination of employment or
the receipt of any required shareholder approval with respect to such Options,
and the remaining portion of the Options shall be forfeited upon the Executive's
termination of
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employment. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced (except as provided in this Section 4.4) whether or not the
Executive obtains other employment.
4.5. LITIGATION EXPENSES. Except as provided for in Section 5.7, if the
Company and the Executive become involved in any action, suit or proceeding
relating to the alleged breach of this Agreement by the Company or the
Executive, and if a judgment in such action, suit or proceeding is rendered in
favor of the Executive with respect to a material portion of such action, suit
or proceeding, the Company shall reimburse the Executive for all expenses
(including reasonable attorneys' fees) reasonably incurred by the Executive in
connection with such action, suit or proceeding.
5. PROTECTION OF CONFIDENTIAL INFORMATION; NON-COMPETITION.
5.1. In view of the fact that the Executive's work for the Company will
bring the Executive into close contact with many confidential affairs of the
Company not readily available to the public, and plans for future developments,
the Executive agrees:
5.1.1. To keep and retain in the strictest confidence all confidential
matters of the Company, including, without limitation, "know how", trade
secrets, customer lists, pricing policies, operational methods, technical
processes, formulae, inventions and research projects, other business affairs of
the Company, and any information whatsoever concerning any director, officer,
employee or agent of the Company or their respective family members learned by
the Executive heretofore or hereafter, and not to disclose them to anyone
outside of the Company, either during or after the Executive's employment with
the Company, except in the course of performing the Executive's duties hereunder
or with the Company's express written consent. The foregoing prohibitions shall
include, without limitation, directly or indirectly publishing (or causing,
participating in, assisting or providing any statement, opinion or information
in connection with the publication of) any diary, memoir, letter, story,
photograph, interview, article, essay, account or description (whether
fictionalized or not) concerning any of the foregoing, publication being deemed
to include any presentation or reproduction of any written, verbal or visual
material in any communication medium, including any book, magazine, newspaper,
theatrical production or movie, or television or radio programming or
commercial; and
5.1.2. To deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints
and other documents (and all copies thereof) relating to the Company's business
and all property associated therewith, which the Executive may then possess or
have under the Executive's control.
5.2. During the Term, the Executive shall not, directly or indirectly,
on his own behalf or behalf of any other person or entity, enter the employ of,
or render any services to, any person, firm or corporation engaged in any
business competitive with the business of the Company or of any of its
subsidiaries or affiliates; the Executive shall not engage in such business on
the Executive's own account; and the Executive shall not become interested in
any such business,
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directly or indirectly, as an individual, partner, shareholder, director,
officer, principal, agent, employee, trustee, consultant, or in any other
relationship or capacity PROVIDED, HOWEVER, that nothing contained in this
Section 5.2 shall be deemed to prohibit the Executive from acquiring, solely as
an investment, up to five percent (5%) of the outstanding shares of capital
stock of any public corporation.
5.3. If the Executive willfully commits a breach, or threatens to
commit a breach, of any of the provisions of Sections 5.1 or 5.2 hereof, the
Company shall have the right to terminate the Executive's employment (with the
consequences set forth in Section 4.3 above), and the following additional
rights and remedies:
5.3.1. The right and remedy to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; and
5.3.2. The right and remedy to require the Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits (collectively "Benefits") derived or received by the Executive
as the result of any transactions constituting a breach of any of the provisions
of Sections 5.1 or 5.2, and the Executive hereby agrees to account for and pay
over such Benefits to the Company.
Each of the rights and remedies enumerated above shall be independent of the
other, and shall be severally enforceable, and all of such rights and remedies
shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company under law or in equity.
5.4. If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, hereafter are construed to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions.
5.5. If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, are held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or area of
such provision and, in its reduced form, said provision shall then be
enforceable.
5.6. The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 5.1 and 5.2 upon the courts of any
state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographical scope of such covenants as to breaches of
such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being for this purpose severable into diverse and
independent covenants.
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5.7. In the event that any action, suit or other proceeding in law or
in equity is brought to enforce the covenants contained in Sections 5.1 and 5.2
or to obtain money damages for the breach thereof, and such action results in
the award of a judgment for money damages or in the granting of any injunction
in favor of the Company, all expenses (including reasonable attorneys' fees) of
the Company in such action, suit or other proceeding shall (on demand of the
Company) be paid by the Executive. In the event the Company fails to obtain a
judgment for money damages or an injunction in favor of the Company, all
expenses (including reasonable attorneys' fees) of the Executive in such action,
suit or other proceeding shall (on demand of the Executive) be paid by the
Company.
6. INVENTIONS AND PATENTS.
6.1. The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during the Term shall belong to the Company,
provided that such Inventions grew out of the Executive's work with the Company
or any of its subsidiaries or affiliates, are related in any manner to the
business (commercial or experimental) of the Company or any of its subsidiaries
or affiliates or are conceived or made on the Company's time or with the use of
the Company's facilities or materials. The Executive shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of the Executive's
inventorship.
6.2. If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Executive within two
years after the termination of the Executive's employment by the Company, it is
to be presumed that the Invention was conceived or made during the Term.
6.3. The Executive agrees that the Executive will not assert any rights
to any Invention as having been made or acquired by the Executive prior to the
date of this Agreement, except for Inventions, if any, disclosed to the Company
in writing prior to the date hereof.
7. INTELLECTUAL PROPERTY.
The Company shall be the sole owner of all the products and proceeds of
the Executive's services hereunder, including, but not limited to, all
materials, ideas, concepts, formats, suggestions, developments, arrangements,
packages, programs and other intellectual properties that the Executive may
acquire, obtain, develop or create in connection with and during the Term, free
and clear of any claims by the Executive (or anyone claiming under the
Executive) of any kind or character whatsoever (other than the Executive's right
to receive payments hereunder). The Executive shall, at the request of the
Company, execute such assignments, certificates or other instruments as the
Company may from time to time deem necessary or desirable to evidence,
establish, maintain, perfect, protect, enforce or defend its right, title or
interest in or to any such properties.
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8. INDEMNIFICATION.
The Company will indemnify the Executive, to the maximum extent
permitted by applicable law, against all costs, charges and expenses incurred or
sustained by the Executive in connection with any action, suit or proceeding to
which the Executive may be made a party by reason of the Executive being an
officer, director or employee of the Company or of any subsidiary or affiliate
of the Company.
9. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by overnight courier or mailed
first class, postage prepaid, by registered or certified mail (notices mailed
shall be deemed to have been given on the date mailed), as follows (or to such
other address as either party shall designate by notice in writing to the other
in accordance herewith):
If to the Company, to:
Sunbeam Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
If to the Executive, to:
Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
General.
9.1. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely in Delaware.
9.2. The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.3. This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and
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neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
9.4. This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive. The Company may assign its
rights, together with its obligations, hereunder (i) to any affiliate or (ii) to
third parties in connection with any sale, transfer or other disposition of all
or substantially all of its business or assets; in any event the obligations of
the Company hereunder shall be binding on its successors or assigns, whether by
merger, consolidation or acquisition of all or substantially all of its business
or assets.
9.5. This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either party at any time
or times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce the same. No waiver by either party
of the breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
10. SUBSIDIARIES AND AFFILIATES.
10.1. As used herein, the term "subsidiary" shall mean any corporation
or other business entity controlled directly or indirectly by the corporation or
other business entity in question, and the term "affiliate" shall mean and
include any corporation or other business entity directly or indirectly
controlling, controlled by or under common control with the corporation or other
business entity in question.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SUNBEAM CORPORATION
By: ___________________________________
_______________________________________
Xxxxx X. Xxxxxx
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APPENDIX I
STOCK OPTIONS.
The Executive's Options shall be granted for 60,000 shares of Common
Stock, at an exercise price of $7.00 per share. In addition, the Executive shall
have the opportunity to exchange all options presently held by the Executive
under the Company's recently announced Option Exchange Program, PROVIDED, that,
all of the terms of such Options obtained in such exchange shall be consistent
with the provisions of Sections 3.4 and 4.4 of this Agreement.
