Exhibit (d)(2)
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
__________, 2000 between BeautiControl, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve as
President and Chief Executive Officer of the Company, and the Executive desires
to be employed by the Company, upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the Company and the Executive hereby agree as
follows:
1. Employment. The Company hereby agrees to employ the Executive and
the Executive hereby agrees to be employed by the Company upon the terms and
subject to the conditions contained in this Agreement. The term of employment
of the Executive by the Company pursuant to this Agreement (the "Employment
Period") shall commence as of the Effective Time of the merger of B-C Merger
Corporation with and into the Company pursuant to the Agreement and Plan of
Merger, dated as of September 13, 2000, among Tupperware Corporation
("Tupperware"), B-C Merger Corporation and the Company (the "Effective Date")
and shall end on the fifth annual anniversary of the Effective Date, unless
earlier terminated pursuant to Section 4 hereof.
2. Position and Duties; Responsibilities. (a) Position and Duties.
The Company shall employ the Executive during the Employment Period as its
President and Chief Executive Officer. During the Employment Period, the
Executive shall perform faithfully and loyally and to the best of the
Executive's abilities the duties assigned to the Executive hereunder and shall
devote the Executive's full business time, attention and effort to the affairs
of the Company and its subsidiaries and shall use the Executive's reasonable
best efforts to promote the interests of the Company and its subsidiaries. The
Executive may engage in charitable, civic or community activities and, with the
prior approval of the Chief Executive Officer of Tupperware, may serve as a
director of any other business corporation, provided that such activities or
service do not interfere with the Executive's duties hereunder. The Company
agrees that the Executive may continue to serve as a director of Haggar Clothing
Co., as a commissioner of the Texas Parks and Wildlife Department, and as
Chairman or Vice Chairman of The Episcopal School of Dallas.
(b) Responsibilities. Subject to the powers, authority and
responsibilities vested in the Board of Directors of the Company (the "Board"),
the Executive shall have the authority and responsibility for the strategic
direction and international expansion of the Company and the general
administration of the Company's affairs. The Executive shall also perform such
other duties (not inconsistent with the position of President and Chief
Executive Officer) on behalf of the Company and its subsidiaries as may from
time to time be authorized or directed.
3. Compensation. (a) Base Salary. During the Employment Period,
the Company shall pay to the Executive a base salary at the rate of $300,000 per
annum ("Base Salary"), payable in accordance with the Company's executive
payroll policy. Such Base Salary shall be reviewed annually, and shall be
subject to such annual increases, if any, as determined by the Compensation and
Directors Committee of the Board of Directors of Tupperware (the "Committee").
(b) Annual Bonus. During the Employment Period, the Company shall
provide the Executive the opportunity to earn an annual incentive bonus (with
such targets being set at reasonable levels) under Tupperware's annual bonus
plan in effect from time to time, with an annual target bonus of at least 45% of
the Executive's Base Salary; provided, however, in no event may the Executive
receive an annual bonus in excess of 90% of the Executive's Base Salary ("Annual
Bonus"). Nothing in this Section 3(b) shall be construed as limiting the
Committee's right to revise, amend or terminate Tupperware's annual bonus plan
in effect from time to time.
(c) Stock Option Grants. The Company shall recommend to the
Committee that, as soon as practicable following the Effective Date, the
Executive be granted an option to purchase 52,500 shares of Tupperware common
stock ("Common Stock"), at a price equal to the fair market value of a share of
Common Stock on the date of grant. The terms and conditions of such option
shall be governed by the Executive's individual stock option award agreement and
the Tupperware Corporation 2000 Incentive Plan. During each year of the
Employment Period commencing after 2000, the Company shall recommend to the
Committee that the Executive be granted an option to purchase at least 35,000
shares of Common Stock. Any such annual stock option grants shall be subject to
the terms and conditions of the Tupperware 2000 Incentive Plan or such other
plan in effect from time to time and under which such options are granted to the
Executive, as well as to the Committee's discretion to grant annual stock option
awards generally, and which option grants shall be memorialized in Tupperware's
standard stock option agreement used for officers of Tupperware, a copy of which
is attached hereto as an exhibit.
(d) Other Benefits. During the Employment Period, the Executive shall
be entitled to participate in the Company's employee benefit plans generally
available to executives of the Company (including, but not limited to, medical,
dental, short-term disability, long-term disability, executive life insurance
and 401(k), such benefits being hereinafter referred to as the "Employee
Benefits"). The Executive shall be entitled to take time off for vacation or
illness in accordance with the Company's policy for executives (which shall be
at least six weeks per year for vacation) and to receive all other fringe
benefits as are from time to time made generally available to executives of the
Company.
(e) Perquisites. During the Employment Period, the Company shall pay
or reimburse the Executive for (i) monthly golf club membership dues for the
club membership in effect on the date of this Agreement; (ii) the Executive's
reasonable expenses for financial planning advice; and (iii) an automobile
consistent with the Company's current policy; provided, however, any and all
such payments and/or reimbursements shall be made under the same terms and in
the same amounts as the Executive was receiving from the Company immediately
prior to entering into this Agreement.
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(f) Expense Reimbursement. During the Employment Period, the Company
shall reimburse the Executive, in accordance with the Company's policies and
procedures, for all proper expenses incurred by the Executive in the performance
of the Executive's duties hereunder.
4. Termination. (a) Death. Upon the death of the Executive, this
Agreement shall automatically terminate and all rights of the Executive and the
Executive's heirs, executors and administrators to compensation and other
benefits under this Agreement shall cease immediately, except that the
Executive's heirs, executors or administrators, as the case may be, shall be
entitled to:
(i) accrued Base Salary through and including the Executive's date
of death;
(ii) accrued Annual Bonus through and including the Executive's date
of death; and
(iii) other Employee Benefits to which the Executive was entitled on
the date of death in accordance with the terms of the plans and programs of
the Company.
(b) Disability. The Company may, at its option, terminate this
Agreement upon written notice to the Executive if the Executive, because of
physical or mental incapacity or disability, fails to perform the essential
functions of the Executive's position, with or without reasonable accommodation,
required of the Executive hereunder for a continuous period of 120 days or any
180 days within any 12-month period. Upon such termination, all obligations of
the Company hereunder shall cease immediately, except that the Executive shall
be entitled to:
(i) accrued Base Salary through and including the effective date of
the Executive's termination of employment;
(ii) accrued Annual Bonus through and including the effective date
of the Executive's termination of employment; and
(iii) other Employee Benefits to which the Executive is entitled upon
termination of employment in accordance with the terms of the plans and
programs of the Company.
In the event of any dispute regarding the existence of the Executive's
incapacity or disability hereunder, the matter shall be resolved by the
determination of a physician mutually agreed to by the Executive and the Chief
Executive Officer of Tupperware. The Executive shall submit to appropriate
medical examinations for purposes of such determination.
(c) Cause. (i) The Company may terminate the Executive's employment
hereunder for Cause upon written notice to the Executive (the "Cause
Notice"). The Cause Notice shall state with particularity the basis for
the termination of Executive under this provision. Such termination for
Cause shall be authorized by the Chief Executive Officer of Tupperware.
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(ii) For the purposes of this Agreement, "Cause" means the occurrence
of any of the following events:
(A) any intentional act of fraud, embezzlement or theft in
connection with the Executive's employment, or the misappropriation of
Company property;
(B) the Executive's conviction of, or plea of nolo contendre to,
a felony;
(C) the Executive's willful disobedience of a lawful directive
of the Chief Executive Officer of Tupperware, which directive is
otherwise reasonable and consistent with the scope and nature of the
Executive's duties and responsibilities under this Agreement;
(D) gross negligence or willful misconduct in the performance of
Executive's duties or responsibilities under this Agreement which
results in a substantial loss to the Company or any of its
subsidiaries, taken as a whole; or
(E) a violation of a statutory or common law duty of loyalty to
the Company, which results in a material loss to the Company or any of
its subsidiaries, taken as a whole, or a violation which involves the
engagement in or performance of services for a competing business
which provides the same or substantially similar products as those
provided by the Company or Tupperware.
(iii) The events described in clauses (C), (D) and (E) above shall
not constitute Cause unless the Company gives the Executive a written
notice of such event, and the Executive thereafter fails to cure such event
within 30 days after receipt of the notice.
(iv) The exercise of the right of the Company to terminate this
Agreement pursuant to this Section 4(c) shall not abrogate the rights or
remedies of the Company in respect of the breach giving rise to such
termination.
(v) If the Company terminates the Executive's employment for Cause,
all obligations of the Company hereunder shall cease, except that the
Executive shall be entitled to the payments and benefits specified in
Sections 4(b)(i) and 4(b)(iii) hereof.
(d) Termination Without Cause. The Company may, at its option,
terminate the Executive's employment under this Agreement upon written notice to
the Executive for a reason other than a reason set forth in Section 4(a), 4(b)
or 4(c). Any such termination shall be authorized by the Chief Executive
Officer of Tupperware. If the Company terminates the Executive's employment for
any such reason, all obligations of the Company hereunder shall cease
immediately, except that the Executive shall be entitled to:
(i) the payments and benefits specified in Sections 4(b)(i) through
4(b)(iii) hereof, inclusive; and
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(ii) the continuation of payment of amounts equal to the Base Salary
which otherwise would have been payable hereunder had the Executive's
employment hereunder not been terminated pursuant to this Section 4(d) for
a period of two years.
(e) Voluntary Termination. Upon 60 days prior written notice to the
Company (or such shorter period as may be permitted by the Chief Executive
Officer of Tupperware), the Executive may voluntarily terminate the Executive's
employment with the Company for any reason. If the Executive voluntarily
terminates the Executive's employment pursuant to this Section 4(e), all
obligations of the Company hereunder shall cease immediately, except that the
Executive shall be entitled to the payments and benefits specified in Sections
4(b)(i) and 4(b)(iii) hereof.
5. Federal and State Withholding. The Company shall deduct from the
amounts payable to the Executive pursuant to this Agreement the amount of all
required federal, state and local withholding taxes in accordance with the
Executive's Form W-4 on file with the Company, and all applicable federal
employment taxes.
6. Confidentiality. The Executive shall not, at any time during the
Employment Period or thereafter, make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret information of
the Company or of any of its subsidiaries or (ii) other technical, business,
proprietary or financial information of the Company or of any of its
subsidiaries not available to the public generally or to the competitors of the
Company or to the competitors of any of its subsidiaries ("Confidential
Information"), except to the extent that such Confidential Information (a)
becomes publicly available, other than as a result of any act or omission of the
Executive, (b) is required to be disclosed by any law, regulation or order of
any court or regulatory commission, department or agency, provided that the
Executive gives prompt notice of such requirement to the Company to enable the
Company to seek an appropriate protective order, or (c) is required to be used
or disclosed by the Executive to perform properly the Executive's duties under
this Agreement. The Executive also shall abide by the terms of any and all
existing or future confidentiality agreements with the Company; provided,
however, in the event that there is a conflict between the provisions of this
Agreement and such other agreement or agreements, the provisions of this
Agreement shall govern. Promptly following the termination of the Employment
Period, the Executive shall surrender to the Company all records, memoranda,
notes, plans, reports, computer tapes and software and other documents and data
which constitute Confidential Information which the Executive may then possess
or have under the Executive's control (together with all copies thereof).
7. Inventions. The Executive hereby assigns to the Company the
Executive's entire right, title and interest in and to all discoveries and
improvements, patentable or otherwise, trade secrets and ideas, writings,
copyrightable material, trademarks and servicemarks which may be conceived by
the Executive or developed or acquired by the Executive during the Employment
Period, which may pertain directly or indirectly to the business of the Company
or any of its subsidiaries. The Executive agrees to disclose fully all such
developments to the Company upon its request, which disclosure shall be made in
writing promptly following any such request. The Executive shall, upon the
Company's request, execute, acknowledge and deliver to the Company all
instruments and do all other acts which are necessary or desirable to enable the
Company or any of its subsidiaries to file and prosecute
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applications for, and to acquire, maintain and enforce, all patents, trademarks
and copyrights in all countries. The Executive also shall abide by the terms of
any and all existing or future intellectual property agreements with the
Company; provided, however, in the event that there is a conflict between the
provisions of this Agreement and such other agreement or agreements, the
provisions of this Agreement shall govern.
8. Representations. The Executive represents and warrants to the
Company that (a) the execution, delivery and performance of this Agreement by
the Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which the Executive is bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other person or entity and (c)
upon the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of the Executive, enforceable in
accordance with its terms.
9. Survival. Sections 6 and 7 of this Agreement shall survive and
continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Employment Period.
10. Arbitration. Any dispute or controversy between the Company and
the Executive arising out of or relating to this Agreement shall be settled by
arbitration in Texas administered by the American Arbitration Association, with
any such dispute or controversy arising under this Agreement being so
administered in accordance with its Commercial Rules then in effect, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator shall have the authority to award
any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, the issuance of an injunction. However,
either party may, without inconsistency with this arbitration provision, apply
to any court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the arbitration
award is rendered or the controversy is otherwise resolved. Except as necessary
in court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company and the Executive. The Company and the
Executive acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
11. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed given when (a)
delivered personally or by overnight courier to the following address of the
other party hereto (or such other address for such party as shall be specified
by notice given pursuant to this Section) or (b) sent by facsimile to the
following facsimile number of the other party hereto (or such other facsimile
number for such party as shall be specified by notice given pursuant to this
Section), with the confirmatory copy delivered by overnight courier to the
address of such party pursuant to this Section 11:
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If to the Company, to: If to the Executive, to:
--------------------- -----------------------
BeautiControl, Inc. Xxxxxxx X. Xxxxx
c/o Tupperware Corporation 10041 Hollow Way
00000 X. Xxxxxx Xxxxxxx Xxxxx Xxxxxx, Xxxxx 00000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
12. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
13. Entire Agreement. Except as otherwise provided in Sections 6 and
7 hereof, this Agreement constitutes the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related in any manner to the
subject matter hereof.
14. Successors and Assigns. This Agreement shall be enforceable by
the Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and assigns.
15. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Texas without
regard to principles of conflict of laws.
16. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only by the written agreement of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
17. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BEAUTICONTROL, INC.
By:________________________________
Title: ____________________________
XXXXXXX X. XXXXX
___________________________________
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