EXHIBIT 10.4
CONFIDENTIALITY, NON-COMPETITION,
NO-SOLICITATION AND NO-HIRE AGREEMENT
AGREEMENT entered into as of September 12, 1996, by and between Rayovac
Corporation, a Wisconsin corporation ("Rayovac"), and Xxxxxx X. Xxxx, Xx.
("Xxxx").
WHEREAS, Rayovac is entering into a Stock Purchase and Redemption
Agreement dated this date with affiliates of Xxxxxx X. Xxx Company
(collectively, "THL") and all of the shareholders of Rayovac, providing for a
recapitalization of Rayovac (the "Recapitalization"); and
WHEREAS, pursuant to the Recapitalization, shares of common stock of
Rayovac owned by Xxxx, members of his family or trusts of which he is the
grantor, constituting 89.66% of Rayovac's outstanding capital stock, are being
redeemed by Rayovac or sold to THL; and
WHEREAS, Xxxx was prior to the Recapitalization, the Chairman of the
Board of Directors, Chief Executive Officer and President of Rayovac; and
WHEREAS, Xxxx is entering into this Agreement as an inducement to effect
the Recapitalization;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do hereby agree as
follows:
1. Xxxx will hold in strict confidence and, except as Rayovac may
authorize or direct, not disclose to any person or use (except in the
performance of any services under the Consulting Agreement between the parties
dated this date) any confidential information or materials received by Xxxx from
Rayovac and any confidential information or materials of other parties. For
purposes of this Section 1, 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 Xxxx'x 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 Xxxx or
any agent of Xxxx. Xxxx also agrees to return to Rayovac promptly upon its
request any Rayovac information or materials in Xxxx'x possession or under
Xxxx'x control, except that Xxxx may retain such information or documents
provided to Xxxx under the Shareholders Agreement dated this date being entered
into in connection with the Recapitalization.
2. During the Non-Competition Period (as defined below), Xxxx 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 (the "Products"). Notwithstanding the foregoing, the
restrictions set forth in this Section 2 shall not apply to (i) the ownership of
not more than 5% of the outstanding securities of any class listed on an
exchange or the Nasdaq Stock Market, (ii) any business involved in the marketing
or sale of batteries at the distribution level in which the Products are not a
principal product distributed by the business or (iii) any business involved in
the marketing or sale of Products at the retail level. The "Non-Competition
Period" is the period commencing on the date hereof and ending five (5) years
from the date hereof.
3. Without limiting the generality of Section 2, Xxxx 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 Rayovac's customers or prospects, as shown by
Rayovac's records, that were such customers or prospects 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 Rayovac had available for sale to its customers or prospects on or prior to
the date hereof, excepting only contacts for businesses excepted in Section 2
above.
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4. During the Non-Solicitation Period (as defined below), Xxxx shall not
solicit the employment or services of any director level employee of Rayovac or
any employee of Rayovac at the level of Vice President or above who is or was an
employee of Rayovac at any time during the Non-Solicitation Period. The
"Non-Solicitation Period" is the period commencing on the date hereof and ending
three (3) years (with respect to employees at the level of Vice President or
above) or one (1) year (with respect to director level employees) from the date
hereof.
5. During the Non-Solicitation Period, Xxxx shall not hire any employee
of Rayovac at the level of Vice President or above or any director level
employee of Rayovac; provided, however, that the foregoing hire restrictions do
not apply to (i) Xxxxx Xxxxx, (ii) Xxxxxx Xxxxxxx, (iii) any of Xxxx'x relatives
or (iv) any such person terminated without cause by Rayovac after the date
hereof.
6. 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 and consistent with this Agreement.
7. For purposes of this Agreement, "Rayovac" refers to Rayovac and any
incorporated or unincorporated affiliates of Rayovac.
8. Xxxx expressly agrees that breach of any provision of this Agreement
would result in irreparable injuries to Rayovac, that the remedy at law for any
such breach will be inadequate and that upon breach of this Agreement, Rayovac,
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 Rayovac.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
RAYOVAC CORPORATION
By /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Director
/s/ Xxxxxx X. Xxxx, Xx.
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Xxxxxx X. Xxxx, Xx.
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