Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of the
1st day of November, 2001, by and between Rayovac Corporation, a Wisconsin
corporation (the "Company"), and Xx. Xxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Company and the Executive wish to terminate Executive's
Severance Agreement with the Company, dated October 1, 1998, because the Company
desires to employ the Executive upon the terms and conditions set forth herein;
and
WHEREAS, the Executive is willing and able to accept such employment on
such terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. EMPLOYMENT DUTIES AND ACCEPTANCE. The Company hereby employs the
Executive, and the Executive agrees to serve and accept employment with
the Company as Senior Vice President - Technology. During the Term (as
defined below), the Executive shall devote all of his working time to
such employment and appointment, shall devote his best efforts to
advance the interests of the Company and shall not engage in any other
business activities, as an employee, director, consultant or in any
other capacity, whether or not he receives any compensation therefor,
without the prior written consent of the Board.
2. TERM OF EMPLOYMENT. Subject to Section 4 hereof, the Executive's
employment and appointment hereunder shall be for a term commencing on
the date hereof and expiring on September 30, 2003 (the "Term"). Upon
expiration of the Term, this Agreement shall automatically extend for
successive periods of one (1) year, unless the Executive or the Company
shall give notice to the other at least ninety (90) days prior to the
end of the Term (or any annual extension thereof) indicating that it
does not intend to renew the Agreement.
3. COMPENSATION. In consideration of the performance by the Executive of
his duties hereunder, the Company shall pay or provide to the Executive
the following compensation which the Executive agrees to accept in full
satisfaction for his services, it being understood that necessary
withholding taxes, FICA contributions and the like shall be deducted
from such compensation:
(a) BASE SALARY. The Executive shall receive a base salary equal
to Two Hundred Twenty-Five Thousand Dollars ($225,000) per
annum effective November 15, 2001 for the duration of the Term
("Base Salary"), which Base Salary shall be paid in equal
semi-monthly installments each year, to be paid semi-monthly
in arrears. The
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Board will review from time to time the Base Salary payable to
the Executive hereunder and may, in its discretion, increase
the Executive's Base Salary. Any such increased Base Salary
shall be and become the "Base Salary" for purposes of this
Agreement.
(b) BONUS. The Executive shall receive a bonus for each fiscal
year ending during the Term, payable annually in arrears,
which shall be based on fifty percent (50%) of Base Salary,
provided the Company achieves certain annual performance goals
established by the Board from time to time (the "Bonus"). The
Board may, in its discretion, increase the annual Bonus. Any
such increased annual Bonus shall be and become the "Bonus"
for such fiscal year for purposes of this Agreement.
(c) INSURANCE COVERAGES AND PENSION PLANS. The Executive shall be
entitled to such insurance, pension and all other benefits as
are generally made available by the Company to its executive
officers from time to time.
(d) STOCK OPTIONS. All stock options previously granted to the
Executive shall remain in full force and effect in accordance
with their terms. If the Company implements a new stock option
program in the future, the Executive may participate to the
extent authorized by the Board.
(e) VACATION. The Executive shall be entitled to three (3) weeks
vacation each year.
(f) OTHER EXPENSES. The Executive shall be entitled to
reimbursement of all reasonable and documented expenses
actually incurred or paid by the Executive in the performance
of the Executive's duties under this Agreement, upon
presentation of expense statements, vouchers or other
supporting information in accordance with Company policy. All
expense reimbursements and other perquisites of the Executive
are reviewable periodically by the Compensation Committee of
the Board, if there be one, or the Board.
(g) VEHICLE. Pursuant to the Company's policy for use of vehicles
by executives, Executive shall be provided the use of a leased
vehicle. Unless the Executive's employment is terminated by
the Company for Cause or by the Executive pursuant to Section
5(c), Executive shall be permitted to drive his Company
vehicle for the duration of the 12-month period following
termination; at the end of such 12-month period, Executive
will be permitted to purchase his Company vehicle at book
value as of such date.
(h) D&O INSURANCE. The Executive shall be entitled to
indemnification from the Company to the maximum extent
provided by law, but not for any action, suit, arbitration or
other proceeding (or portion thereof) initiated by the
Executive, unless authorized or ratified by the Board. Such
indemnification shall be covered by the terms of the Company's
policy of insurance for directors and officers in effect from
time to time (the "D&O Insurance"). Copies of the Company's
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charter, by-laws and D&O Insurance will be made available to
the Executive upon request.
(i) LEGAL FEES. The Company shall pay the Executive's actual and
reasonable legal fees incurred in connection with the
preparation of this Agreement.
4. TERMINATION.
(a) TERMINATION BY THE COMPANY WITH CAUSE. The Company shall have
the right at any time to terminate the Executive's employment
hereunder without prior notice upon the occurrence of any of
the following (any such termination being referred to as a
termination for "Cause"):
(i) the commission by the Executive of any deliberate and
premeditated act taken by the Executive in bad faith
against the interests of the Company;
(ii) the Executive has been convicted of, or pleads NOLO
CONTENDERE with respect to, any felony, or of any
lesser crime or offense having as its predicate
element fraud, dishonesty or misappropriation of the
property of the Company;
(iii) the habitual drug addiction or intoxication of the
Executive which negatively impacts his job
performance or the Executive's failure of a
Company-required drug test;
(iv) the willful failure or refusal of the Executive to
perform his duties as set forth herein or the willful
failure or refusal to follow the direction of the
President, the CEO or the Board, provided such
failure or refusal continues after thirty (30) days
of the receipt of notice in writing from the
President, the CEO or the Board of such failure or
refusal, which notice refers to this Section 4(a) and
indicates the Company's intention to terminate the
Executive's employment hereunder if such failure or
refusal is not remedied within such thirty (30) day
period; or
(v) the Executive breaches any of the terms of this
Agreement or any other agreement between the
Executive and the Company which breach is not cured
within thirty (30) days subsequent to notice from the
Company to the Executive of such breach, which notice
refers to this Section 4(a) and indicates the
Company's intention to terminate the Executive's
employment hereunder if such breach is not cured
within such thirty (30) day period.
If the definition of termination for "Cause" set forth above
conflicts with such definition in the Executive's time-based
or performance- based Stock Option Agreements pursuant to the
1997 Plan or the Rayovac Corporation 1996 Stock Option Plan
(collectively, the
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"Stock Option Agreements") or any agreements referred to
therein, the definition set forth herein shall control.
(b) TERMINATION BY COMPANY FOR DEATH OR DISABILITY. The Company
shall have the right at any time to terminate the Executive's
employment hereunder upon thirty (30) days prior written
notice upon the Executive's inability to perform his duties
hereunder by reason of any mental, physical or other
disability for a period of at least six (6) consecutive months
(for purposes hereof, "disability" has the same meaning as in
the Company's disability policy), if within 30 days after such
notice of termination is given, the Executive shall not have
returned to the full-time performance of his duties. The
Company's obligations hereunder shall, subject to the
provisions of Section 5(b), also terminate upon the death of
the Executive.
(c) TERMINATION BY COMPANY WITHOUT CAUSE. The Company shall have
the right at any time to terminate the Executive's employment
for any other reason without Cause upon sixty (60) days prior
written notice to the Executive.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. The Executive shall be
entitled to terminate his employment and appointment hereunder
upon sixty (60) days prior written notice to the Company. Any
such termination shall be treated as a termination by the
Company for "Cause" under Section 5.
(e) NOTICE OF TERMINATION. Any termination by the Company for
Cause shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 8. For
purposes of this Agreement, a "Notice of Termination" means a
written notice given prior to the termination which (i)
indicates the specific termination provision in this Agreement
relied upon, (ii) sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated
and (iii) if the termination date is other than the date of
receipt of such notice, specifies the termination date of this
Agreement (which date shall be not more than fifteen (15) days
after the giving of such notice). The failure by the Company
to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause shall not
waive any right of the Company hereunder or preclude the
Company from asserting such fact or circumstance in enforcing
its rights hereunder.
5. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) WITH CAUSE. If the Executive's employment is terminated with
Cause, the Executive's salary and other benefits specified in
Section 3 shall cease at the time of such termination, and the
Executive shall not be entitled to any compensation specified
in Section 3 which was not required to be paid prior to such
termination; provided, however, that the Executive shall be
entitled to continue to participate in the Company's medical
benefit plans to the extent required by law.
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(b) WITHOUT CAUSE, DEATH OR DISABILITY. If the Executive's
employment is terminated by the Company without Cause or by
reason of death or disability, then the Company shall pay the
Executive the amounts and provide the Executive the benefits
as follows:
(i) The Company shall pay to the Executive as severance,
an amount in cash equal to double the sum of (i) the
Executive's Base Salary, and (ii) the annual Bonus
(if any) earned by the Executive pursuant to any
annual bonus or incentive plan maintained by the
Company in respect of the fiscal year ending
immediately prior to the fiscal year in which the
termination occurs, such cash amount to be paid to
the Executive ratably monthly in arrears over the
Non-Competition Period (as defined below).
(ii) For the greater of (i) the 24-month period
immediately following such termination or (ii) the
remainder of the Term, the Company shall arrange to
provide the Executive and his dependents the
additional benefits specified in Section 3(c).
Benefits otherwise receivable by the Executive
pursuant to this Section 5(b)(ii) shall cease
immediately upon the discovery by the Company of the
Executive's breach of the covenants contained in
Section 6 or 7 hereof.
(iii) The Executive's accrued vacation (determined in
accordance with Company policy) at the time of
termination shall be paid as soon as reasonably
practicable.
(iv) Any payments provided for hereunder shall be paid net
of any applicable withholding required under federal,
state, or local law and any additional withholding to
which the Executive has agreed.
(v) If the Executive's employment with the Company
terminates during the Term, the Executive shall not
be required to seek other employment or to attempt in
any way to reduce any amounts payable to the
Executive by the Company pursuant to this Section 5.
6. AGREEMENT NOT TO COMPETE.
(a) The Executive agrees that during the Non-Competition Period
(as defined below), he will not, directly or indirectly, in
any capacity, either separately, jointly or in association
with others, as an officer, director, consultant, agent,
employee, owner, principal, partner or stockholder of any
business, or in any other capacity, engage or have a financial
interest in any business which is involved in the design,
manufacturing, marketing or sale of batteries or battery
operated lighting devices (excepting only the ownership of not
more than 5% of the outstanding securities of any class listed
on an exchange or the Nasdaq Stock Market). The
"Non-Competition Period" is (a) the longer of the Executive's
employment hereunder or time
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period which he serves as a director of the Company plus (b) a
period of one (1) year thereafter.
(b) Without limiting the generality of clause (a) above, the
Executive further agrees that during the Non-Competition
Period, he will not, directly or indirectly, in any capacity,
either separately, jointly or in association with others,
solicit or otherwise contact any of the Company's customers or
prospects, as shown by the Company's records, that were
customers or prospects of the Company at any time during the
Non-Competition Period if such solicitation or contact is for
the general purpose of selling products that satisfy the same
general needs as any products that the Company had available
for sale to its customers or prospects during the
Non-Competition Period.
(c) The Executive agrees that during the Non-Competition Period,
he shall not, other than in connection with employment for the
Company, solicit the employment or services of any employee of
Company who is or was an employee of Company at any time
during the Non-Competition Period. During the Non-Competition
Period, the Executive shall not hire any employee of Company
for any other business.
(d) If a court determines that the foregoing restrictions are too
broad or otherwise unreasonable under applicable law,
including with respect to time or space, the court is hereby
requested and authorized by the parties hereto to revise the
foregoing restrictions to include the maximum restrictions
allowed under the applicable law.
(e) For purposes of this Section 6 and Section 7, the "Company"
refers to the Company and any incorporated or unincorporated
affiliates of the Company.
7. SECRET PROCESSES AND CONFIDENTIAL INFORMATION.
(a) The Executive agrees to hold in strict confidence and, except
as the Company may authorize or direct, not disclose to any
person or use (except in the performance of his services
hereunder) any confidential information or materials received
by the Executive from the Company and any confidential
information or materials of other parties received by the
Executive in connection with the performance of his duties
hereunder. For purposes of this Section 7(a), confidential
information or materials shall include existing and potential
customer information, existing and potential supplier
information, product information, design and construction
information, pricing and profitability information, financial
information, sales and marketing strategies and techniques and
business ideas or practices. The restriction on the
Executive's use or disclosure of the confidential information
or materials shall remain in force until such information is
of general knowledge in the industry through no fault of the
Executive or any agent of the Executive. The Executive also
agrees to return to the Company promptly upon its request any
Company
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information or materials in the Executive's possession or
under the Executive's control.
(b) The Executive will promptly disclose to the Company and to no
other person, firm or entity all inventions, discoveries,
improvements, trade secrets, formulas, techniques, processes,
know-how and similar matters, whether or not patentable and
whether or not reduced to practice, which are conceived or
learned by the Executive during the period of the Executive's
employment with the Company, either alone or with others,
which relate to or result from the actual or anticipated
business or research of the Company or which result, to any
extent, from the Executive's use of the Company's premises or
property (collectively called the "Inventions"). The Executive
acknowledges and agrees that all the Inventions shall be the
sole property of the Company, and the Executive hereby assigns
to the Company all of the Executive's rights and interests in
and to all of the Inventions, it being acknowledged and agreed
by the Executive that all the Inventions are works made for
hire. The Company shall be the sole owner of all domestic and
foreign rights and interests in the Inventions. The Executive
agrees to assist the Company at the Company's expense to
obtain and from time to time enforce patents and copyrights on
the Inventions.
(c) Upon the request of, and, in any event, upon termination of
the Executive's employment with the Company, the Executive
shall promptly deliver to the Company all documents, data,
records, notes, drawings, manuals and all other tangible
information in whatever form which pertains to the Company,
and the Executive will not retain any such information or any
reproduction or excerpt thereof.
8. NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) upon confirmation of receipt when such notice or other
communication is sent by facsimile or telex, (c) one day after delivery
to an overnight delivery courier, or (d) on the fifth day following the
date of deposit in the United States mail if sent first class, postage
prepaid, by registered or certified mail. The addresses for such
notices shall be as follows:
(a) For notices and communications to the Company:
Rayovac Corporation
000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
(b) For notices and communications to the Executive:
Xx. Xxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Any party hereto may, by notice to the other, change its address for
receipt of notices hereunder.
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9. GENERAL.
9.1 GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the State of Wisconsin, without
reference to its conflicts of law principles.
9.2 AMENDMENT; WAIVER. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms
hereof may be waived, only by a written instrument executed by
all of the parties hereto or, in the case of a waiver, by the
party waiving compliance. The failure of any 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 any 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.
9.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Executive, without regard to the duration of his
employment by the Company or reasons for the cessation of such
employment, and inure to the benefit of his administrators,
executors, heirs and assigns, although the obligations of the
Executive are personal and may be performed only by him. This
Agreement shall also be binding upon and inure to the benefit
of the Company and its subsidiaries, successors and assigns,
including any corporation with which or into which the Company
or its successors may be merged or which may succeed to their
assets or business.
9.4 COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original but
which together shall constitute one and the same instrument.
9.5 ATTORNEYS' FEES. In the event that any action is brought to
enforce any of the provisions of this Agreement, 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 one of the parties to
this Agreement, all expenses, including reasonable attorneys'
fees, shall be paid by the non-prevailing party.
9.6 NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation during his employment hereunder in any benefit,
bonus, incentive or other plan or program provided by the
Company or any of its affiliates and for which the Executive
may qualify. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or
program of the Company or any affiliated company at or
subsequent to the date of the Executive's termination of
employment with the Company shall, subject to the terms hereof
or any other agreement entered into by the Company and the
Executive on or
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subsequent to the date hereof, be payable in accordance with
such plan or program.
9.7 MITIGATION. In no event shall the Executive be obligated to
seek other employment by way of mitigation of the amounts
payable to the Executive under any of the provisions of this
Agreement.
9.8 EQUITABLE RELIEF. The Executive expressly agrees that breach
of any provision of Sections 6 or 7 of this Agreement would
result in irreparable injuries to the Company, that the remedy
at law for any such breach will be inadequate and that upon
breach of such provisions, the Company, in addition to all
other available remedies, shall be entitled as a matter of
right to injunctive relief in any court of competent
jurisdiction without the necessity of proving the actual
damage to the Company.
9.9 SEVERANCE AGREEMENT. The Severance Agreement between the
parties dated October 1, 1998 is hereby terminated and all
rights and obligations thereunder are of no further force or
effect.
9.10 ENTIRE AGREEMENT. This Agreement and the schedule hereto
constitute the entire understanding of the parties hereto with
respect to the subject matter hereof and supersede all prior
negotiations, discussions, writings and agreements between
them with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
RAYOVAC CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
Chief Executive Officer
EXECUTIVE:
/s/ Xx. Xxxx X. Xxxxxxxxx
----------------------------------
Name: Xx. Xxxx X. Xxxxxxxxx
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