Exhibit 10.35
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT is made as of September 20, 2000 by and between Remington
Products Company, L.L.C., a Delaware corporation ("Remington"), and "NAME" (the
"Executive").
WITNESSETH
WHEREAS, the Management Committee of Remington recognizes that the
possibility of a Change of Control (as hereinafter defined) exists and that the
threat or the occurrence of a Change of Control can result in significant
distractions of its key management personnel because of the uncertainties
inherent in such a situation;
WHEREAS, the Management Committee of Remington has determined that it is
essential and in the best interest of Remington and its members to retain the
services of the Executive in his position as "TITLE" in the event of a threat or
occurrence of a Change of Control and to ensure his continued dedication and
efforts in such event without undue concern for his personal financial and
employment security;
WHEREAS, in order to induce the Executive to remain in the employ of
Remington, particularly in the event of a threat or the occurrence of a Change
of Control, Remington desires to enter into this Agreement with the Executive to
provide the Executive with certain benefits in the event his employment is
terminated as a result of, or in connection with, a Change of Control; and
WHEREAS, the terms of this Agreement have been approved by more than 75% of
the voting power of all outstanding capital stock of Remington.
AGREEMENT
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, it is agreed as follows:
1. Term of Agreement. This Agreement shall commence as of the date hereof
and shall continue in effect until December 31, 2002; whereupon, and, on each
anniversary thereof (so long as a Change of Control has not occurred on or
before December 31, 2002), the term of this Agreement shall automatically be
extended for an additional one-year period, unless either the Company or the
Executive shall have given written notice to the other at least 180 days prior
thereto that the term of this Agreement shall not be so extended; provided,
however, that so long as the Company (as defined in Section 2.1) has achieved,
or is reasonably expected to have achieved, an EBITDA of at least $50 million
(the "Target EBITDA") for the most recent fiscal year ending prior to such
anniversary, the Company shall not be entitled to give such notice; and
provided, further, however, that notwithstanding any such notice by the Company
not to extend, the term of this Agreement shall not expire prior to the
expiration of twelve (12) months after the occurrence of a Change of Control
during the term of this Agreement (as otherwise provided for herein). For
purposes of this Section 1, "EBITDA" shall mean earnings before interest, taxes,
depreciation and amortization.
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2. Definitions.
2.1. Company and Management Committee. For purposes of this Agreement, (a)
"Company" shall include Remington and its Successors and Assigns, as applicable,
and (b) "Board" shall mean the Management Committee (or other successor
governing or executive committee, board or other such body) of the Company.
2.2. Accrued Compensation. For purposes of this Agreement, "Accrued
Compensation" shall mean an amount which shall include all amounts earned or
accrued through the Termination Date (as hereinafter defined) but not paid as of
the Termination Date including (i) base salary, (ii) vacation pay (to the extent
provided by Company (as hereinafter defined) policy or applicable law), and
(iii) compensation previously deferred (including any earnings on such
deferrals, but excluding any qualified plan deferrals).
2.3. Base Salary. For purposes of this Agreement, "Base Salary" shall mean
the Executive's annual base salary at the rate in effect on the Effective Date
(as hereafter defined) or the Termination Date, whichever is higher, and shall
include all amounts of his base salary that have been deferred with respect to
the year in which the Effective Date occurs under any other agreement or
arrangement with the Company.
2.4. Target Bonus and Pro Rata Bonus. For purposes of this Agreement, (a)
"Target Bonus" shall mean the Executive's annual target bonus in effect for the
fiscal year during which the Effective Date occurs, or in which the Termination
Date occurs, whichever is higher, and (b) "Pro Rata Bonus" shall mean an amount
equal to the Target Bonus multiplied by a fraction, the numerator of which is
the number of days in the Company's fiscal year in which the Executive's
employment terminates, during which the Executive was employed, through the
Termination Date, and the denominator of which is 365.
2.5. Cause. For purposes of this Agreement, a termination of employment is
for "Cause" if:
(a) the Executive has been indicted for, or enters a plea of not
guilty or nolo contendere in connection with, a felony; or
(b) the termination is evidenced by a resolution adopted in good
faith by at least a majority of the Board (excluding the vote of
the Executive if he is on the Board) which states that the
Executive:
(i) willfully and continually failed substantially to perform his
duties with the Company (other than a failure resulting from the
Executive's incapacity due to physical or mental illness or from
the assignment of duties to the Executive that would constitute
Good Reason as hereinafter defined), which failure continued
after a written notice of demand for substantial performance has
been delivered to the Executive by the Board specifying the
manner in which the Executive has failed substantially to perform
and such failure to perform has not been substantially cured
after a period of at least thirty days after the Executive
receives such demand, or
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(ii) willfully engaged in gross misconduct which is demonstrably and
materially injurious to the Company;
provided, however, that no termination of the Executive's
employment shall be for Cause as set forth in clause (b) above
until the Executive shall have been provided an opportunity to be
heard in person by the Board upon 30 days' prior written notice.
2.6. Change of Control. For purposes of this Agreement, a "Change of
Control" shall mean:
(a) prior to an initial Public Offering of Common Stock, the
date Vestar Capital Partners III, L.P., together with any
investor therein or any affiliate thereof ("Vestar"):
(i) experiences a reduction in Vestar's "beneficial ownership"
(within the meaning of Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, as amended (the "Act"),
which shall in any event include having the power to vote
(or cause to be voted at Vestar's direction) pursuant to
contract, irrevocable proxy or otherwise), directly or
indirectly, in the aggregate, of the total voting power of
the Company beneficially owned by Vestar as of the date
hereof, whether as a result of the issuance of securities of
the Company, any merger, consolidation, liquidation or
dissolution of the Company, any direct or indirect transfer
of securities or assets by the Company or otherwise, and
(ii) does not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority
of the Board;
(b) coincident with or subsequent to an initial Public Offering
of Common Stock, the date that:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Act), other than Vestar, is or becomes the
beneficial owner (as defined in clause (a)(i) above, except
that such person shall be deemed to have "beneficial
ownership" of all securities that any such person has the
right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of more than 20% of the total voting power of
the Company; and
(ii) Vestar "beneficially owns" (as defined in clause (a)(i)
above), directly or indirectly, in the aggregate, a lesser
percentage of the total voting power of the Company than
such other person; and
(iii)Vestar does not have the right or ability by voting power,
contract or otherwise to elect or designate for election a
majority of the Board; or
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(c) the date, following the expiration of any period of two
consecutive years, that individuals, who at the beginning of
such period constituted the Management Committee of the
Company (together with any new directors whose election by
such Management Committee, or whose nomination for election
by the members of the Company, was approved by a vote of 51%
of the directors of the Company then still in office who
were either directors at the beginning of such period or
whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of
the Management Committee of the Company then in office.
For purposes of clauses (a) and (b), Vestar shall be deemed to beneficially
own voting power of a corporation held by any other corporation (the "parent
corporation") so long as Vestar beneficially owns, directly or indirectly, in
the aggregate, a majority of the voting power of the parent corporation. For
purposes of clause (b), "Public Offering" shall mean the sale of securities of
the Company to the public (x) pursuant to an effective registration statement
filed under the Securities Act of 1933, as amended (excluding any registration
of such securities on a Form S-4 or Form S-8) and (y) which results in an active
trading market in such securities (it being understood that such an active
trading market shall be deemed to exist if, among other things, such securities
are listed on a national securities exchange or on NASDAQ). For purposes hereof,
Vestar shall be deemed to have voting power over each security of the Company
owned by any employee of the Company.
2.7. Successors and Assigns. For purposes of this Agreement, "Successors
and Assigns" shall mean a corporation or other person or entity acquiring all or
substantially all of the securities or assets and business of Remington whether
by merger, purchase, operation of law or otherwise, and any affiliate of such
Successors and Assigns.
2.8. Disability; Retirement.
(a) For purposes of this Agreement, (i) except as set forth in
Section 2.8(b) below, "Disability" shall mean a physical or
mental infirmity which impairs the Executive's ability to
substantially perform his normal duties with the Company, as
they existed immediately prior to such infirmity, on a full
time basis, for a period of 120 days in any 365-day period,
which disability shall be certified to the Company by a
physician of the Executive's choice who is reasonably
satisfactory to the Company, and the Executive has not
returned to his full-time employment prior to the
Termination Date, and (ii) "Retirement" shall mean the
early, normal or late retirement under a pension plan
sponsored by the Company (or any plan of the Company's
parent or affiliates in which the Executive is a
participant), as defined in such plan.
(b) In the event an employment agreement is in place between the
Executive and the Company, the definition of "Disability"
set forth in such employment agreement shall apply for
purposes of this Agreement.
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2.9. Good Reason.
(a) For purposes of this Agreement, "Good Reason" shall
mean the occurrence after a Change of Control of any of
the events or conditions described in subsections (i)
through (vi) below:
(i) the Executive's annual base salary or annual target
bonus opportunity is reduced below the amount in effect
on the date on which the Change of Control occurs (the
"Effective Date");
(ii) a change in the Executive's duties, responsibilities,
title or status which represents a material and adverse
change from his duties, responsibilities title or
status as in effect on the Effective Date or the
assignment of duties or responsibilities materially
inconsistent from the duties or responsibilities
performed by the Executive on the Effective Date;
provided, however, that a mere change of reporting
responsibility that directly results from the Company
becoming a subsidiary of the entity effecting the
Change of Control shall not, in and of itself,
constitute Good Reason hereunder;
(iii)the long-term incentive compensation (including stock
option and/or other equity-related grants) offered to
the Executive and the basis or conditions for the
Executive's participation therein are materially less
than the long-term incentive compensation (including
stock option and other equity-related grants) generally
offered to similarly-situated officers of the acquiring
company in the Change of Control;
(iv) the Executive is required to be based at any place
outside a 40-mile radius from the location where the
Executive was based and performed services on the
Effective Date;
(v) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any Successors and
Assigns to assume and agree to perform this Agreement,
as contemplated in Section 7 hereof; and
(vi) the failure of the Company to pay any compensation or
benefits to which the Executive is entitled within the
period ending on the later of thirty (30) days after
the applicable due date and the fifth day after the
Company receives notice from the Executive of such
failure to pay.
(b) The Executive shall give the Company written notice,
within 10 days after the date of the Executive's
discovery or actual knowledge of the occurrence of any
of the events or conditions described in Section
2.9(a), which he claims is the basis for termination
with Good Reason. The Company shall have 30 days from
the receipt of such notice in which to cure or resolve
the behavior in question before the Executive is
entitled to terminate his employment with Good Reason.
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2.10. Notice of Termination. For purposes of this Agreement, following a
Change of Control, "Notice of Termination" shall mean a written notice of
termination from the Company of the Executive's employment which indicates the
specific termination provision in this Agreement relied upon and which 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.
2.11. Termination Date. For purposes of this Agreement, for the twelve (12)
month period following a Change of Control, "Termination Date" shall mean (a) in
the case of the Executive's death, his date of death, (b) in the case of Good
Reason, the last day of his employment, and (c) in all other cases, the date
specified in the Notice of Termination.
3. Termination of Employment. If, during the term of this Agreement, the
Executive's employment with the Company shall be terminated within twelve (12)
months following a Change of Control, the Executive shall be entitled to the
following compensation and benefits:
(a) Termination for Cause or Disability by Company;
Termination without Good Reason or Retirement by
Executive; Death. If the Executive's employment with
the Company is terminated (i) by the Company for Cause
or Disability, (ii) by the Executive other than for
Good Reason, or (iii) by reason of the Executive's
death or Retirement, the Company shall pay to the
Executive the following:
(i) Accrued Compensation and any other accrued or vested
benefits of the Executive provided in accordance with
the terms of any applicable employee benefit plan of
the Company (or any of its affiliates); and
(ii) if such termination is as a result of death, Disability
or Retirement, the Pro Rata Bonus.
In addition, if the Executive's employment is terminated
for Disability, the Executive will be entitled to
receive the disability benefits provided for in his
employment agreement with the Company or an affiliate;
provided, however, that if Executive does not have an
employment agreement or his employment agreement does
not provide for disability benefits, the Executive
shall receive a continuation of any existing long-term
disability benefits, at the Company's expense, for the
period ending on the earlier to occur of the
termination of the Executive's Disability or his 65th
birthday.
(b) Termination without Cause by Company; Termination for
Good Reason by Executive. If the Executive's employment
with the Company is terminated by the Company without
Cause or by the Executive for Good Reason, the
Executive shall be entitled to the following:
(i) the Company shall pay the Executive all Accrued
Compensation and a Pro Rata Bonus;
(ii) the Company shall pay the Executive as severance pay
and in lieu of any further compensation for periods
subsequent to the Termination Date, in a single payment
an amount in cash equal to the sum of (A) two times the
Base Salary, plus (B) one times the Target Bonus;
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(iii)for a period commencing on the Termination Date and
ending on the date which is twenty-four (24) months
following the Termination Date (the "Continuation
Period"), the Company shall at its expense continue on
behalf of the Executive and his dependents and
beneficiaries the medical, dental, life and disability
insurance benefits provided to the Executive on the
Termination Date (or, in the case of medical and dental
benefits, such amounts will be credited towards
applicable obligations of the Company under the
Consolidated Omnibus Budget Reconciliation Act of
1985). The Company's obligation hereunder with respect
to the foregoing benefits shall be terminable to the
extent that the Executive obtains comparable benefits
pursuant to a subsequent employer's benefit plans, in
which case the Company may terminate the coverage of
any benefits it is required to provide the Executive
hereunder. This subsection (iii) shall not be
interpreted so as to limit any benefits to which the
Executive, his dependents or beneficiaries may
otherwise be entitled under any of the Company's
employee benefit plans, programs or practices following
the Executive's termination of employment, including
without limitation, retiree medical and life insurance
benefits;
(iv) the Company shall provide additional pension
contributions under all Company or affiliate pension
plans for the Continuation Period (except that where
such contributions may not be provided without
adversely affecting the qualified status of a pension
plan, the Executive shall instead receive a payment
equal to the contributions that would have been made
during the Continuation Period); and
(v) the Company shall fully vest the Executive in any
unfunded pension benefit provided under any
nonqualified pension plan, program or arrangement in
which the Executive participated (including, without
limitation, the Deferred Compensation Plan); and
(vi) unless it would adversely affect the Company's ability
to use pooling-of-interest accounting in a Change of
Control transaction in which such accounting is
intended to be used, the Company shall immediately and
fully vest, as of the Termination Date, all of the
Executive's then-outstanding stock options, stock
appreciation rights, phantom stock awards, and
restricted stock granted or issued by the Company prior
to the Change of Control to the extent not previously
vested on or following the Change of Control; and
(vii)if so requested by the Executive, the Company shall
provide outplacement services consistent with the
Company's past practices.
(c) The payments provided for in Sections 3(a) and 3(b)(i),
(ii), and (iv) shall be paid in a single lump sum cash
payment within ten (10) days after the Executive's
Termination Date (or earlier, if required by applicable
law).
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(d) The severance pay and benefits provided for in this
Section 3 shall be reduced by the amount of any other
severance or termination pay to which the Executive may
be entitled under any other severance plan or policy in
effect at the Company.
(e) The Company shall provide the Executive with Directors
and Officers ("D&O") and Errors and Omissions ("E&O")
insurance in limits reasonably acceptable to Executive.
The Company also agrees to indemnify and defend the
Executive, to the fullest extent permitted by law and
the Company's corporate bylaws, with respect to any and
all claims which arise from or relate to the
Executive's duties as an officer, member of the Board
or employee of the Company.
4. Gross-Up.
(a) In the event it shall be determined that any payment,
benefit or distribution (or combination thereof) by the
Company, any of its affiliates, or one or more trusts
established by the Company for the benefit of its
employees, 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 pursuant to or by reason of any other
agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock
appreciation right, phantom equity awards or similar
right, or the lapse or termination of ant restriction
on the vesting or exercisability of any of the
foregoing) (a "Payment") would be subject to the excise
tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") by reason of
being "contingent on a change in ownership or control"
of the Company, within Section 280G of the Code (or any
successor provision thereto) 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, hereinafter collectively
referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment or
payments (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 the 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.
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(b) Subject to the provisions of Section 4(a) hereof, all
determinations required to be made under this Section
4, 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 a nationally recognized
certified public accounting firm as may be designated
by the Company (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the
Company and the Executive within fifteen (15) business
days of Termination Date, or such earlier time as is
requested by the Company; provided that for purposes of
determining the amount of any Gross-Up Payment, the
Executive shall be deemed to pay federal income tax at
the highest marginal rates applicable to individuals in
the calendar year in which any such Gross-Up Payment is
to be made and deemed to pay state and local income
taxes at the highest effective rates applicable to
individuals in the state or locality of the Executive's
residence or place of employment in the calendar year
in which any such Gross-Up Payment is to be made, net
of the maximum reduction in federal income taxes that
can be obtained from deduction of such state and local
taxes, taking into account limitations applicable to
individuals subject to federal income tax at the
highest marginal rates. 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 4, shall be paid by the Company to the
Executive (or to the appropriate taxing authority on
the Executive's behalf) when due immediately prior to
the date the Executive is required to make payment of
any Excise Tax or other taxes. If the Accounting Firm
determines that no Excise Tax is payable by the
Executive, it shall so indicate to the Executive in
writing, with an opinion that the Executive has
substantial authority not to report any Excise Tax on
his federal state, local income or other tax return.
Any determination by the Accounting Firm shall be
binding upon the Company and the Executive absent a
contrary determination by the Internal Revenue Service
or a court of competent jurisdiction; provided,
however, that no such determination shall eliminate or
reduce the Company's obligation to provide any Gross-Up
Payment that shall be due as a result of such contrary
determination. As a result of the uncertainty in the
application of Section 4999 of the Code (or any
successor provision thereto) and the possibility of
similar uncertainty regarding state or local tax law at
the time of any determination by the Accounting Firm
hereunder, it is possible that the amount of the
Gross-Up Payment determined by the Accounting Firm to
be due to (or on behalf of) the Executive was lower
than the amount actually due ("Underpayment"). In the
event that the Company exhausts its remedies pursuant
to Section 4(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 as promptly as possible
and notify the Company and the Executive of such
calculations, and any such Underpayment shall be
promptly paid by the Company to or for the benefit of
the Executive within five (5) business days after
receipt of such determination and calculations.
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(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
any Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten (10)
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 thirty
(30) day period following the date on which he 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 4(c), the Company
shall control all proceedings taken in connection with
such contest and, at its sole option, may pursue or
forego 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, further, 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; provided, further, that if the Executive
is required to extend the statute of limitations to
enable the Company to contest such claim, the Executive
may limit this extension solely to such contested
amount. 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.
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(d) If, after the receipt by the Executive of an amount
paid or advanced by the Company pursuant to this
Section 4, the Executive becomes entitled to receive
any refund with respect to a Gross-Up Payment, the
Executive shall (subject to the Company's complying
with the requirements of Section 4(c)) promptly pay to
the Company the amount of such refund received
(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 4(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 thirty (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 the Gross-Up Payment required to
be paid.
5. Notice of Termination. Following a Change of Control, any purported
termination of the Executive's employment by the Company shall be communicated
by Notice of Termination to the Executive. For purposes of this Agreement, no
such purported termination shall be effective without such Notice of
Termination.
6. Confidentiality; Non-Competition.
(a) Without the Company's written consent, the Executive shall not:
(i) at any time during or after the Executive's employment
with the Company, disclose any non-public information
concerning the financial data, strategic business
plans, and other non-public, proprietary and
confidential information of the Company or any of its
affiliates, except when required by the Company in the
course of fulfilling his duties, a court of competent
jurisdiction or applicable law; or
(ii) at any time while employed by the Company and for one
year following the Termination Date, directly or
indirectly, solicit or offer employment to any person
who has been employed by the Company or any of its
affiliates at any time during the 12 months immediately
preceding such solicitation.
(b) For two years following the Termination Date, the Executive shall not,
whether on the Executive's own behalf or on behalf of or in conjunction with any
person, company, business entity or other organization whatsoever, directly or
indirectly,
(i) engage in any business that competes with the
business of the Company or its affiliates (including,
without limitation, businesses which the Company or
its affiliates have specific plans to conduct in the
future and as to which the Executive was aware, as of
the Termination Date) (a "Competitive Business");
(ii) enter the employ of, or render any services to, any
person or entity (or any division of any person or
entity) who or which derives more than 15% of its
annual revenues from any Competitive Business (or which
is part of a controlled group of corporations which
derives more than 15% of its annual revenues from any
Competitive Business), or any person or entity (or any
division of any person or entity) who or which (or has
an affiliate which), during the term in which the
Executive is employed or rendering services, acquires
any Competitive Business, such that such person or
entity (or division of such person or entity) derives
more than 25% of annual revenues from any Competitive
Business (or is part of a controlled group of
corporations which derives more than 25% percent of its
annual revenues from any Competitive Business); or
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(iii)acquire a financial interest in, or, as described
below, otherwise become actively involved with, any
Competitive Business, directly or indirectly, as an
individual, partner, member, shareholder, member,
officer, employee, director, principal, agent, trustee
or consultant; provided, however, that the Executive
may, directly or indirectly own, solely as an
investment, securities of any person engaged in a
Competitive Business which is publicly traded on a
national or regional stock exchange or on the
over-the-counter market if the Executive (a) is not a
controlling person of, or a member of a group which
controls, such person, and (b) does not, directly or
indirectly, own 5% or more of any class of securities
of such person.
(c) It is expressly understood and agreed that although the
Executive and the Company consider the restrictions
contained in this Section 6 to be reasonable, if a
final judicial determination is made by a court of
competent jurisdiction that the time or territory or
any other restriction contained in this Agreement is an
unenforceable restriction against the Executive, the
provisions of this Agreement shall not be rendered void
but shall be deemed amended to apply as to such maximum
time and territory and to such maximum extent as such
court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent
jurisdiction finds that any restriction contained in
this Agreement is unenforceable, and such restriction
cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of
the other restrictions contained herein.
7. Mutual Non-Disparagement. The Company, its affiliates and subsidiaries
agree and the Company shall use its commercially reasonable best efforts to
cause their respective executive officers and directors to agree, that they will
not make or publish any statement critical of the Executive, or in any way
adversely affecting or otherwise maligning the Executive's reputation. The
Executive agrees that he will use his reasonable efforts not to make or publish
any statement critical of the Company, its affiliates and their respective
executive officers and directors, or in any way adversely affecting or otherwise
maligning the business or reputation of any member of the Company, its
affiliates and subsidiaries and their respective officers, directors and
employees.
8. Successors; Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the Company, its Successors and Assigns, and the
Company shall require any Successors and Assigns to expressly assume 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 or assignment had
taken place. Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, his beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
9. Legal Expenses. The Company shall pay all reasonable costs and expenses
(including, without limitation, any and all court costs and attorneys' fees and
expenses) incurred by the Executive in connection with any good faith disputes
arising under this Agreement or any provision hereof, as such costs and expenses
are incurred.
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10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, by overnight courier or by facsimile, addressed to the
respective addresses and facsimile numbers last given by each party to the
other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
11. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company (except for any
severance or termination policies, plans, programs or practices) and for which
the Executive may qualify, nor shall anything herein limit or reduce such rights
as the Executive may have under any other agreements with the Company (except
for any severance or termination agreement).
12. Vested Benefits. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of the
Company shall be payable in accordance with such plan or program, except as
explicitly modified by this Agreement.
13. No Guaranteed Employment. The Executive and the Company acknowledge
that, except as may otherwise be provided under any other written agreement
between the Executive and the Company, the employment of the Executive by the
Company is "at will" and may be terminated by either the Executive or the
Company at any time.
14. Settlement of Claims; No Mitigation. 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 circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company may have against the Executive or others. The Executive
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise and no such payment shall be
offset or reduced by the amount of any compensation or benefits provided to the
Executive in any subsequent employment except as provided in Section 3(b)(iii).
15. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
16. Withholding. Notwithstanding any other provision of this Agreement, the
Company may, to the extent required by law, withhold applicable federal, state
and local income and other taxes from any payments due to the Executive
hereunder.
17. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to the
conflict of laws principles thereof. For purposes of jurisdiction and venue, the
Company hereby consents to jurisdiction and venue in any suit, action or
proceeding with respect to this Agreement (or any provisions hereof) in any
court of competent jurisdiction in the state in which the Executive resides at
the commencement of such suit, action or proceeding and waives any objection,
challenge or dispute as to such jurisdiction or venue being proper.
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18. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has executed this Agreement as of
the day and year first above written.
REMINGTON PRODUCTS COMPANY, L.L.C.
By:................................
Name:
Title:
By:................................
Executive
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