EXHIBIT 10.4
FINAL
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), dated as
of December 14, 2003, is entered into by and between The Dial Corporation, a
Delaware corporation (the "Company") and Xxxxxxx X. Xxxx (the "Executive").
WHEREAS, the Executive and the Company previously entered into an
employment agreement, dated as of August 15, 2002 (the "Prior Employment
Agreement");
WHEREAS, on the date hereof, the Company entered into an Agreement and
Plan of Merger (the "Merger Agreement") by and among the Company, Xxxxxx KgaA, a
Kommanditgesellschaft auf Aktien (a partnership limited by shares) organized
under the laws of the Federal Republic of Germany ("Henkel"), and Henkel Merger
Corporation, a Delaware company and indirect wholly owned subsidiary of Henkel
("Henkel Sub"), pursuant to which, at the Effective Time (as defined in the
Merger Agreement), Henkel Sub will be merged with and into the Company, with the
Company continuing as the surviving corporation to the merger, in accordance
with the terms of the Merger Agreement (the "Merger");
WHEREAS, the parties desire to enter into this Agreement to specify the
terms and conditions of the Executive's employment with the Company from and
after the Effective Time;
WHEREAS, this Agreement is conditional upon the Company, Henkel and the
Executive entering into a change in control letter agreement dated as of the
date hereof (the "CIC Agreement"); and
WHEREAS, as of the Effective Date, the Executive and the Company agree
that the terms of this Agreement shall supercede, in its entirety, the terms of
the Prior Employment Agreement, except as provided in the CIC Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties agree as follows:
1. Agreement to Continue Employment; Term. (a) Subject to, and
effective as of the Effective Time of, the consummation of the Merger pursuant
to the Merger Agreement, the Company hereby agrees to continue the employment of
the
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Executive, and the Executive hereby agrees to such continued employment, in each
such case, on the terms and conditions provided herein. In the event that (i)
the Merger Agreement is terminated in accordance with its terms or (ii) prior to
the Merger, the Company engages in a transaction, other than the Merger, which
constitutes a "Change of Control" (as defined in the Prior Employment
Agreement), the terms of this Agreement shall be null, void and of no effect ab
initio.
(b) The term of employment of the Executive by the Company
hereunder shall be for a period commencing on the date on which the Effective
Time occurs (the "Effective Date") and ending on the earlier of February 1, 2006
("Final Date") or the Date of Termination (as defined herein) (the "Term").
2. Nature of Duties. The Executive shall serve as President and
Chief Executive Officer of the Company and, subject to the direction of the
Company's Board, shall have full authority for management of the Company and all
of its operations, financial affairs, facilities and investments. During the
Term, the Executive shall also serve as Chairman of the Board except that during
any period that either Xxxxxx Xxxxxx or Klaus Morwind is serving as Chairman of
the Board, the Executive shall serve as Vice-Chairmen of the Board. The
Executive shall devote substantially all of his working time and efforts to the
business and affairs of the Company, provided that the Executive shall be free
to serve as a director or officer or both of such not-for-profit corporations as
he may desire, to join and participate in such committees for community or
national affairs as he may select and to join and serve on business corporation
boards of directors, so long as such activities do not significantly interfere
with the performance of the Executive's duties hereunder and, in the case of
public business corporation boards of which the Executive was not a member when
he executed this Agreement, only with the prior approval of the Board.
3. Place of Performance. The Executive shall be based at the
principal executive offices of the Company in the city of Scottsdale, Arizona,
except for required business travel.
4. Compensation.
(a) Annual Base Salary. During the Term, the Executive shall
receive an annual base salary of $850,000 (the "Annual Base Salary"), which
shall be paid in conformity with the Company's policies relating to salaried
employees. The Executive shall be eligible for periodic salary increases, but
not decreases, as determined in the sole discretion of the Executive
Compensation Committee of the Board (the "Committee"). Unless increased by the
Committee in its sole discretion, the Annual Base Salary shall apply for each
year during the Term. Any increase in Annual Base Salary
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shall not serve to limit or reduce any other obligation to the Executive under
this Agreement. The Annual Base Salary shall not be reduced after any such
increase and the term Annual Base Salary as utilized in this Agreement shall
refer to Annual Base Salary as so increased.
(b) Annual Bonus. Except as provided herein, in each fiscal
year ending during the Term, the Executive shall be eligible to participate in
such bonus programs as are available to senior executives of the Company. The
terms and conditions of such bonus opportunities shall be established by the
Committee; provided, however, that the aggregate targeted payout level for
achievement of the Executive's annual incentive performance objectives shall be
no less than 90% of the Executive's Annual Base Salary (for this purpose, the
Annual Base Salary shall be the Executive's actual base earnings for the
performance period to which such bonus opportunity pertains). Each such annual
bonus (the "Annual Bonus") shall be paid no later than the end of the third
month of the fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless the Executive shall elect to defer the receipt of such
Annual Bonus. The amount of any 2004 Annual Bonus shall be decreased by any part
thereof that is paid in connection with the Merger.
(c) Long-Term Incentive Plan. The Executive shall be eligible
to participate, from and after the Effective Time, in a cash-based long term
incentive plan (the "LTIP") which shall provide benefits to the Executive that
are no less favorable to the Executive than the benefits provided to similarly
situated employees of the U.S. operations of Henkel from time to time.
(d) Annuity. Upon the expiration of the Term, the Executive
will be entitled to receive, in monthly installments, a minimum guaranteed life
annuity payment of $67,000, provided that if at the time of commencement of the
benefit the Executive is married to his current spouse, the payment will instead
be made in the form of a 100% joint and survivor annuity based on the
Executive's life and the life of his current spouse equal to the actuarial
equivalent (calculated by using the actuarial assumptions contained in the
Company's supplemental retirement plan) of a $67,000 single life annuity on the
Executive (the "Annuity"), and further provided that such Annuity will be
reduced by any defined pension benefits earned by the Executive from the
Company. In the event of the Executive's death prior to commencement of the
Annuity, such Annuity shall be paid to his current spouse as if he had commenced
benefits immediately preceding his death.
(e) Deferred Compensation Plans. Following the Effective Time,
the Company shall pay to the Executive his accrued account balance under the
Company's Management Deferred Compensation Plan and Director Deferred
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Compensation Plan in accordance with the terms of such plans and the Executive's
distribution elections thereunder, as in effect on the date hereof.
(f) Other Benefits. During the Term, the Executive (i) shall
be entitled to participate in all employee benefit plans which are generally
available to the Company's senior executives (subject to, and on a basis
consistent with, the terms, conditions and overall administration of such plans,
programs and arrangements); (ii) shall receive pension benefits and supplemental
executive retirement benefits (collectively, "Pension Benefits") which are
generally available to other senior executives of the Company; and (iii) shall
receive health insurance programs, executive medical benefits, retiree medical
benefits, life insurance, accidental death and dismemberment benefits
(collectively, "Welfare Benefits") which are generally available to other senior
executives of the Company.
(g) Fringe Benefits and Relocation. During the Term, the
Executive shall be entitled to fringe benefits generally available to other
senior executives of the Company but in all events those that were provided to
the Executive immediately prior to the Effective Time, including, without
limitation, payment of health club dues and expenses related to an annual
physical in line with the Executive's historical practices, use of a Company
automobile, laptop and cell phone and payment of related expenses (collectively,
the "Fringe Benefits"). The Executive shall be entitled to air transportation
between Scottsdale and Florida and housing in Scottsdale in the same manner and
to the same extent and under the same arrangements as provided to the Executive
immediately prior to the Effective Time. Upon expiration of the Term, the
Company will pay for any expenses relating to the Executive's relocation from
Scottsdale to Florida. All payments made pursuant to this Section 4(g) shall be
grossed-up and paid on an after-tax basis.
(h) Reimbursement for Expenses. During the Term, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the Company's policies, practices
and procedures.
(i) Office and Support. During the Term, the Executive shall
be provided with an appropriate office and with such secretarial and other
support facilities on the same basis as provided to the Executive immediately
prior to the Effective Date. Transportation in connection with Company business
shall be in the same manner as provided to the Executive by the Company
immediately prior to the Effective Time.
(j) Vacation. During the Term, the Executive shall be entitled
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to six (6) weeks' paid vacation per year.
(k) Insurance; Indemnification. During the Term and thereafter
while the Executive could have any liability, the Executive shall be named as an
insured party in any liability insurance policy (including any director and
officer liability policy) maintained by the Company for its directors and/or
senior executive officers. In addition, the Company shall, as set forth in its
respective charter and/or by-laws, or in a separate indemnification agreement,
indemnify the Executive to the fullest extent permitted under Delaware law. The
Company shall also indemnify the Executive, to the extent permitted by law, with
respect to public service activities and not-for-profit board membership he
undertakes in accordance with Section 2.
(l) Special Benefits. Notwithstanding the expiration of the
Term on the Final Date or any earlier expiration of the Term,
(i) during the period beginning on the Final Date or, if
earlier, the Date of Termination (such date, the "BEGINNING DATE") and ending on
the three year anniversary of the Effective Time (the "EXTENDED PERIOD"), the
Executive (and his eligible dependents) shall be entitled to receive continued
Welfare Benefits to the extent provided to other peer executives who are
actively employed by the Company during such period; provided that (i) such
benefits are at least equal in the aggregate to those provided to the Executive
immediately prior to the Beginning Date and (ii) if the Executive becomes
employed by another employer and is eligible to receive medical and other
welfare benefits under another employer provided plan, the Welfare Benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility. For purposes of determining
eligibility (but not the time of commencement) of the Executive for retiree
benefits pursuant to the plans, practices, programs and policies of the Company,
the Executive shall be considered to have remained employed with the Company
during the Extended Period and to have retired on the last day of such period;
and
(ii) the Company shall pay to the Executive in a lump sum in
cash within 15 days of the Beginning Date, an amount equal to (x) the present
value of the Executive's accrued benefits under The Dial Corporation Retirement
Income Plan and The Dial Corporation Supplemental Pension Plan, or successor
plans, in which the Executive was participating at the Effective Time
(collectively, the "PENSION PLANS"), determined after giving effect to a period
of additional years of pension credit under the Pension Plans equal to the
Extended Period and assuming the Executive's age is the age he would have
obtained as of the last day of the Extended Period, less (y) the present value
of the Executive's accrued benefits under the Pension Plans at the Beginning
Date, determined without regard to any additional years of age or pension
service credit. Such
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present value shall be determined using actuarial assumptions and discount rates
consistent with the Company's practice for financial reporting purposes in
effect immediately prior to the Beginning Date.
The continued Welfare Benefits, the period for determining
eligibility for retiree benefits referred to in Section 4(l)(i) and present
value payment referred to in Section 4(l)(ii) are referred to collectively as
the "SPECIAL BENEFITS."
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Term. If the Company
determines in good faith that the Disability of the Executive has occurred
during the Term (pursuant to the definition of Disability set forth below), it
may give to the Executive written notice in accordance with Section 16(b) of
this Agreement of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of the Executive's
duties. Prior to the Disability Effective Date, the Executive shall continue to
be treated as if fully and actively employed by the Company for purposes of this
Agreement, and without respect to whether or not the Executive is or is
determined to be Disabled. For purposes of this Agreement, "Disability" shall
mean the absence of the Executive from the Executive's duties with the Company
on a full-time basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and reasonably acceptable
to the Executive or the Executive's legal representative.
(b) By the Company.
(i) Without Cause. The Company may terminate the Executive's
employment without Cause.
(ii) For Cause. The Company may terminate the Executive's employment
during the Term for Cause. For purposes of this Agreement, "Cause"
shall mean:
(1) the Executive's conviction of, or plea of nolo
contendere to, any felony (other than vicarious
liability which results solely from Executive's position
as Chief Executive Officer, provided that Executive did
not know, or should
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not have known, of any act or failure to act upon which
such conviction or plea is based, or knew, but acted on
the advice of counsel);
(2) the Executive's willful misconduct with regard to the
Company having a material and demonstrable adverse
effect on the Company;
(3) the Executive's willful failure to attempt to perform
the services to be rendered hereunder (except in the
event of the Executive's incapacity due to mental or
physical illness) after receipt of written notice from
the Board and a reasonable opportunity for the Executive
to cure such willful non-performance; or
(4) the Executive's failure to attempt to adhere to, or take
affirmative steps to carry out, any legal and proper
directive of the Board, after receipt of written notice
from the Board and a reasonable opportunity to cure such
non-adherence or failure to act.
The termination of Executive's employment shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (1), (2), (3) or (4) above, and
specifying the particulars thereof in detail. For purposes of this Agreement, no
act, or failure to act, on Executive's part shall be considered willful unless
done, or omitted to be done, by Executive in bad faith and without reasonable
belief that Executive's act or failure to act was in the Company's best
interests. Any act, or failure to act, based upon authority granted pursuant to
a duly adopted Board resolution or advice of counsel shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and in
the Company's best interests.
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(c) By the Executive.
(i) Without Good Reason. The Executive may terminate
employment under this Agreement by giving Notice of Termination to
the Company in accordance with Section 16(b) of this Agreement no
less than 90 days prior to such termination, unless such termination
is pursuant to Section (5)(c)(ii) below, or the Company elects to
waive or reduce such notice requirement.
(ii) With Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean:
(1) except as contemplated in Section 2 of this Agreement,
any diminution in the Executive's title or position or
material diminution in authority, duties or
responsibilities immediately following the Effective
Time, recognizing that at the Effective Time, the
Company will cease to be a public company and will
become a subsidiary of Henkel and subject to paragraph
2(b) of the CIC Agreement;
(2) the assignment of any duties or responsibilities to the
Executive that are not commensurate with the Executive's
title, authority or position immediately following the
Effective Time, recognizing that at the Effective Time,
the Company will cease to be a public company and will
become a subsidiary of Henkel and subject to paragraph
2(b) of the CIC Agreement;
(3) a decrease in Annual Base Salary or a decrease in the
Executive's target annual incentive below 90% of the
Annual Base Salary;
(4) any material diminution of benefits described in
Sections 4(e), (f), (g), (h) or (i) of this Agreement;
(5) the relocation of the Executive's principal place of
employment to a location more than 35 miles from the
Company's Scottsdale, Arizona headquarters;
(6) any material breach of this Agreement by the Company
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after written notice from the Executive and a reasonable
opportunity for the Company to cure such breach; or
(7) any failure by the Company to comply with and satisfy
Section 12(c) of this Agreement.
For purposes of this Section 5(c)(ii), any good faith determination of "Good
Reason" made by the Executive will be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause,
or by the Executive, shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 16(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, 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 Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability or by
the Executive without Good Reason, the Date of Termination shall be the date on
which the Company notifies the Executive of such termination or 90 days after
the date on which the Executive notifies the Company of such termination (or
such earlier date if approved by the Company), respectively, and (iii) if the
Executive's employment is terminated by reason of death or Disability, the Date
of Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
6. Obligations of the Company upon Termination
(a) Good Reason; Other Than for Cause or Disability. If, during the
Term, the Company terminates the Executive's employment other than for Cause or
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Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination an amount equal to the sum of:
(1) the Executive's Annual Base Salary through the Date of Termination to the
extent not theretofore paid; (2) any bonus earned during the prior fiscal year
but not yet paid to Executive; and (3) any compensation previously deferred by
the Executive (together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid (the sum
of the amounts described in clauses (1), (2) and (3) shall be hereinafter
referred to as the "Accrued Obligations"), plus the product of (x) the Current
Target Bonus (as defined below) and (y) a fraction, the numerator of which is
the number of days in the fiscal year that includes the Date of Termination that
have elapsed as of such date and the denominator of which is 365 (the "Pro Rata
Bonus");
(ii) the Company shall make 24 equal monthly payments to the
Executive equal in the aggregate to the greater of (x) the total amount the
Executive would have been paid in Annual Base Salary for a period commencing on
the Date of Termination and ending on the Final Date (the "Severance Protection
Period") or (y) one times (1x) the sum of the Annual Base Salary plus the full
target bonus with respect to the fiscal year in which the Date of Termination
occurs (the "Current Target Bonus");
(iii) the Company shall treat the Executive as a "retiree"
with respect to participation in all employee benefit plans, including but not
limited to the Company's annual incentive plan, supplemental retirement plan,
and Management Deferred Compensation Plan, the Directors Deferred Compensation
Plan, and the LTIP, if applicable (the "Retiree Treatment");
(iv) the Executive shall continue to be eligible to receive
Welfare Benefits and Fringe Benefits from the Date of Termination through the
later of (x) the end of the Severance Protection Period and (y) the first
anniversary of the Date of Termination; and
(v) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company, including, without limitation, the Special Benefits and the
protections under Section 4(k) of this Agreement (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of
the Executive's death during the Term, this Agreement shall terminate without
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obligations to the Executive's legal representatives under this Agreement, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination.
(c) Disability. If the Executive's employment is terminated by
reason of the Executive's Disability during the Term, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination.
(d) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Term or if Executive voluntarily
terminates employment during the Term (excluding a termination for Good Reason),
this Agreement shall terminate without further obligations to the Executive
other than the obligation to pay to the Executive (i) his or her Annual Base
Salary through the Date of Termination, (ii) the amount of any compensation
previously deferred by the Executive, (iii) Other Benefits, in each case to the
extent theretofore unpaid and (iv) except if the Executive's employment shall be
terminated for Cause, the Retiree Treatment.
(e) Expiration of Term. Upon expiration of the Term or, if later,
the termination of the Executive's employment for any reason, the Executive will
receive the Accrued Obligations, Other Benefits, Pro Rata Bonus and Retiree
Treatment.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan, program,
policy or practice provided by the Company and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company, other than
the Prior Employment Agreement, as defined herein. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company at
or subsequent to the Date of Termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement.
8. Entire Agreement. This Agreement and other documents executed
concurrently herewith or referred to herein contain the sole and entire
agreement and understanding of the parties with respect to the subject matters
contained herein, and the parties agree that this Agreement supercedes the Prior
Employment Agreement, except for the Surviving Provisions (as defined in the CIC
Agreement), and that such Prior Employment Agreement (but not the Surviving
Provisions) is rendered null and void as
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of the Effective Date of this Agreement.
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Executive (whether
paid or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 9) (a "Payment") would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") or any interest or penalties are incurred by the Executive with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive: (i) an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Executive of all
taxes (including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments, and (ii) an amount equal to the product of any
deductions disallowed for federal, state or local income tax purposes because of
the inclusion of the Gross-Up Payment in the Executive's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state, or local
income taxation, respectively, for the calendar year in which the Gross-Up
Payment is to be made.
(b) Subject to the provisions of Section 9(c), all determinations
required to be made under this Section 9, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Deloitte &
Touche LLP or such other certified public accounting firm as may be designated
by the Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control (as defined in the Prior Employment Agreement),
the Executive shall appoint another nationally recognized accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 9, shall be paid by the Company to the
Executive within five days of the receipt of the Accounting Firm's
determination. Any
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determination by the Accounting Firm shall be binding upon the Company and the
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Executive.
(c) The 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 the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the 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. The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which it gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim,
(ii) 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,
(iii) cooperate with the Company in good faith in order to
effectively contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim; 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 and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 9(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
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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 the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the 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; provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, 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 the 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. To the extent the foregoing would be in
violation of the Xxxxxxxx-Xxxxx Act of 2002 or any successor law thereto, the
Executive shall have no obligation to repay any amount advanced to him under
this Section 9(c)(iv).
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 9(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 9(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Executive
of an amount advanced by the Company pursuant to Section 9(c), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of 30 days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
10. Confidentiality; Cooperation with Regard to Litigation.
(a) While employed by the Company and thereafter, the Executive
shall not, without the prior written consent of the Company, disclose to anyone
(except in good faith in the ordinary course of business to a person who will be
advised by the Executive to keep such information confidential) or make use of
any Confidential Information (as defined below) except in the performance of his
duties hereunder, or
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when required to do so by legal process by any governmental agency having
supervisory authority over the business of the Company or by any administrative
or legislative body (including a committee thereof) or judicial authority that
requires him to divulge, disclose or make accessible such Confidential
Information. In the event that the Executive is so ordered, he shall give prompt
written notice to the Company to allow the Company the opportunity to object to
or otherwise resist such order.
(b) "Confidential Information" shall mean all information concerning
the business of Henkel or any Subsidiary (as defined below) relating to any of
their products, product development, trade secrets, customers, suppliers,
finances, and business plans and strategies. Excluded from the definition of
Confidential Information is information (i) that is or becomes part of the
public domain, other than through the breach of this Agreement by the Executive
or (ii) regarding the Company's business or industry properly acquired by the
Executive in the course of his career as an executive in the Company's industry
and independent of the Executive's employment by the Company. For this purpose,
information known or available generally within the trade or industry of the
Company or any Subsidiary shall be deemed to be known or available to the
public.
(c) "Subsidiary" shall mean any corporation controlled directly or
indirectly by Henkel.
(d) While employed by the Company and thereafter, the Executive
agrees to cooperate with the Company by making himself reasonably available to
testify on behalf of Henkel or any Subsidiary in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, and to
assist Henkel or any Subsidiary in any such action, suit, or proceeding by
providing information and meeting and consulting with the Board or its
representatives or counsel, or representatives or counsel to Henkel or any
Subsidiary, as reasonably requested with regard to matters that relate to the
Executive's employment period as an officer of the Company; provided, however,
that the same does not materially interfere with the Executive's then current
professional activities, involve a conflict between the Executive and Henkel or
any Subsidiary or would cause a violation of any court order or governmental
requirement. The Company agrees to reimburse the Executive, on an after-tax
basis, for all reasonable expenses actually incurred in connection with his
provision of testimony or assistance, including reasonable legal fees.
11. Non-competition and Non-solicitation.
(a) While employed by the Company and during the Applicable
Restricted Period (as defined below), the Executive shall not engage in
Competition with
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the Company or any subsidiary thereof. "Competition" shall mean engaging in any
activity, except as provided below, for a Competitor of the Company or any
subsidiary thereof, whether as an employee, consultant, principal, agent,
officer, director, partner, shareholder (except as a less than three percent
shareholder of a publicly traded company) or otherwise (together "EMPLOYMENT").
A "COMPETITOR" shall mean any corporation or other entity that derives at least
15% or more of its revenues, directly or indirectly, from the conduct of any
business anywhere in the world which competes with the business conducted by the
Company or any subsidiary thereof, as determined on the Date of Termination of
the Executive's employment. If the Executive commences Employment with any
entity that is not a Competitor at the time the Executive initially becomes
employed or becomes a consultant, principal, agent, officer, director, partner,
or shareholder of the entity, future activities of such entity shall not result
in a violation of this provision unless (i) such activities were contemplated by
the Executive at the time the Executive initially commenced Employment or (ii)
the Executive commences directly or indirectly overseeing or managing the
activities of an entity which becomes a Competitor during the Applicable
Restricted Period, which activities are competitive with the activities of the
Company or any subsidiary thereof. In addition, the Executive may be employed
by, or otherwise associated with, noncompeting portions of the competing entity
so long as he does not directly or indirectly oversee, manage or contribute to
the competing activities of the Competitor. The Executive shall not be deemed to
be indirectly overseeing, managing or contributing to the Competitor's
activities which are competitive with the activities of the Company or any
subsidiary thereof so long as he does not participate in any discussions with
regard to the conduct of, or take any act intended to facilitate the success of,
the competing business.
(b) Notwithstanding the foregoing Section 11(a), in the event the
Executive desires to accept Employment with a Competitor which, in the
Executive's reasonable judgment, competes with an insignificant portion of the
business conducted by the Company or any subsidiary thereof, the Executive shall
have the right, prior to accepting such Employment, to submit a written request
to the Company for a limited waiver of the Company's right to enforce the
provisions of this Section 11. If the Company determines, in its good faith
reasonable judgment, that the Executive's proposed Employment with the
Competitor would not result in more than an insignificant level of competition
with the business conducted by the Company or any subsidiary thereof at either
the time such request is made or in the then foreseeable future, the Company
shall grant the Executive the requested waiver.
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(c) While employed by the Company, the Executive shall not induce
employees of the Company or any subsidiary thereof to terminate their
employment, nor shall the Executive solicit or encourage any corporation or
other entity in a joint venture relationship, directly or indirectly, with the
Company or any subsidiary thereof, to terminate or diminish their relationship
with the Company or any subsidiary thereof or to violate any agreement with any
of them. During such period, the Executive shall not hire, either directly or
through any employee, agent or representative, any employee of the Company or
any subsidiary thereof or any person who was employed by the Company or any
subsidiary thereof within 90 days of such hiring.
(d) The Executive's compliance with the non-competition and
non-solicitation provisions of this Section 11 shall be deemed compliance with
any other non-competition or non-solicitation provision agreed to between the
Executive and Henkel or the Company.
(e) For purposes of this Section 11, the term "Applicable Restricted
Period" means:
(i) in the event of any termination of the Executive's
employment by the Executive for Good Reason or by the Company other than for
Cause, the period (i) from the Date of Termination through the Final Date,
provided that the Executive is in timely receipt of the compensation payable
pursuant to Section 6(a)(ii) hereof in connection with such period, and (ii) if
elected by the Company in accordance with this Section 11(e) and provided the
Company makes a lump sum cash payment to the Executive, within 3 business days
following any such election, of an amount equal to the Executive's Annual Base
Salary and the full target bonus with respect to the fiscal year in which the
Date of Termination occurs (the "Election Payment"), the one year period
following the Final Date;
(ii) in the event of the termination of the Executive's
employment by the Company for Cause or by the Executive, other than a
termination by the Executive for Good Reason, if elected by the Company in
accordance with this Section 11(e) and provided the Company makes a lump sum
cash payment of the Election Payment to the Executive, within 3 business days
following any such election, the one year period following the Date of
Termination; and
(iii) in the event of the termination of the Executive's
employment for any reason at the Final Date, if elected by the Company in
accordance with this Section 11(e) and provided the Company makes a lump sum
cash payment of the Election Payment to the Executive, within 3 business days
following any such election, the one year period following the Final Date.
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Any election by the Company pursuant to this Section 11 to impose the
restrictions of Section 11(a) on the Executive for the one year period described
in the applicable subparagraph above must be made by the Company, in writing,
within 5 business days after receipt by the Company of a Notice of Termination
from the Executive, in the case of any such termination by the Executive, at the
time the Company notifies the Executive of the Company's termination of the
Executive, in the case of any such termination by the Company, or within 5
business days of the Final Date, in the case of the termination of the
Executive's employment on the Final Date, which ever is applicable.
12. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation 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, provided however that the meaning of the term "Company" under
the provisions of Section 11 shall not extend to such successor other than the
Surviving Corporation, as defined in the Merger Agreement.
13. Full Settlement; No Mitigation; No Offset. 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 the Executive or others. In the event of any termination of employment,
the Executive shall be under no obligation to seek other employment, and amounts
due the Executive under this Agreement shall not be offset by any remuneration
attributable to any subsequent employment that he may maintain other than
substantially comparable welfare benefits provided by a new employer.
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14. Remedies. If the Executive materially breaches any of the provisions
contained in Sections 10 or 11 above, the Company (a) shall have the right to
immediately terminate all remaining severance payments and benefits due under
Sections 6(a) and (b) of this Agreement and (b) shall have the right to seek
injunctive relief. The Executive acknowledges that such a breach of Sections 10
or 11 would cause irreparable injury and that money damages would not provide an
adequate remedy for the Company; provided, however, the foregoing shall not
prevent the Executive from contesting the issuance of any such injunction on the
ground that no violation or threatened violation of Sections 10 or 11 has
occurred.
15. Resolution of Disputes and Legal Fees.
(a) Any controversy or claim arising out of or relating to this
Agreement, the CIC Agreement or the Surviving Provisions or any breach or
asserted breach hereof or thereof or questioning the validity and binding effect
hereof or thereof arising under or in connection with this Agreement, the CIC
Agreement or the Surviving Provisions, other than seeking injunctive relief
under Section 14, shall be resolved by binding arbitration, to be held at an
office closest to the Company's principal offices in accordance with the rules
and procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
(b) In addition to any and all payments owed to the Executive
pursuant to the CIC Agreement, the Company agrees to pay as incurred, to the
full extent permitted by law, all legal fees, costs of arbitration and related
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agreement, the CIC Agreement or the Surviving Provisions or any guarantee of
performance thereof (including as a result of any contest by the Executive about
the amount of any payment pursuant to this Agreement, the CIC Agreement or the
Surviving Provisions), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code and
tax gross-ups with respect to the legal fees referred to herein.
16. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, 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. This Agreement may not be amended or
modified otherwise than by a
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written agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) 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 the Executive:
Xxxxxxx X. Xxxx
Chairman, President and Chief Executive Officer
The Dial Corporation
15501 North Dial Corporation
Xxxxxxxxxx, Xxxxxxx 00000-0000
If to the Company:
The Dial Corporation
15501 North Dial Corporation
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: General Counsel
with a copy to Henkel:
Xxxxxx XxxX
Xxxxxxxxxxxxx 00
00000 Xxxxxxxxxx, Xxxxxxx
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
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(e) Agreement. The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason pursuant to Section 5(c)(i)-(vii) of this Agreement, shall not be deemed
to be a waiver of such provision or right or any other provision or right of
this Agreement.
17. Company Car. Upon any termination of the Executive's employment (other
than for Cause) (the "Transfer Date"), the Company shall promptly transfer to
the Executive the title of the Volkswagen Bug that the Executive currently uses
as his company car or the company car that the Executive uses as of the Transfer
Date, and the Company shall gross-up the Executive for any taxes he incurs as a
result of such transfer. Prior to Transfer Date, the Company shall provide the
Executive with the full-time use of the Volkswagen Bug or another company car,
and the Company shall pay for all expenses associated with such use, including,
without limitation, gasoline, maintenance, repair and insurance expenses.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
THE DIAL CORPORATION
By:_________________________
[Name]
[Title]
____________________________
Xxxxxxx X. Xxxx
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