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EXHIBIT 10E
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CHANGE IN CONTROL
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EMPLOYMENT AGREEMENT
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This Agreement dated as of October 21, 1996, by and between RUBBERMAID
INCORPORATED, an Ohio corporation (Rubbermaid), and XXXXXXXX X. XXXXXXX (the Key
Executive).
WHEREAS, Rubbermaid desires to be assured of the continued employment
of the Key Executive and wishes to make certain arrangements in the event
Rubbermaid becomes the subject of a "Change in Control" (as defined below); and
WHEREAS, The Key Executive is willing to continue in the employment of
Rubbermaid or that of one of its wholly-owned subsidiaries but desires assurance
of continued employment in the event of a Change in Control of Rubbermaid; and,
WHEREAS, The Board of Directors of Rubbermaid has authorized the
Company to enter into this Agreement with the Key Executive to provide the
protections set forth herein;
NOW, THEREFORE, In consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
1. CONTINUED EMPLOYMENT OF KEY EXECUTIVE.
(a) In the event of termination of employment of Key Executive,
within a period of two (2) years following a Change in Control for whatever
reason, including a voluntary termination by the Key Executive without Good
Reason, but excluding a termination by Rubbermaid for "Cause", Rubbermaid shall
pay to Key Executive within five (5) business days after the Date of Termination
the Severance Payment and Rubbermaid will provide the Key Executive Employee
Benefits for a period of three (3) years after such termination.
(b) In the event that after the expiration of two (2) years
following a Change in Control and prior to the expiration of five (5) years
following the Change in Control, Key Executive's employment with Rubbermaid is
terminated by Rubbermaid without Cause (as defined below) or in the event, after
the expiration of two (2) years following the Change in Control and prior to the
expiration of five (5) years following the Change in Control the Key Executive
terminates his employment for Good Reason (as defined below) (in either case a
"Qualifying Termination), (i) the Key Executive shall receive from Rubbermaid
within five (5) business days after
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the Date of Termination, as defined below, the Severance Payment, provided,
however, in the case of a termination prior to a Change in Control the Severance
Payment shall be made coincident with the date of the Change in Control and (ii)
Rubbermaid will provide to the Key Executive Employee Benefits (as defined
below) for a period of three (3) years after such termination; provided,
however, in the case of a termination prior to a Change in Control, the Employee
Benefits shall be provided for a period of three years after the Change in
Control. A resignation tendered by the Key Executive pursuant to the request of
Rubbermaid's Board of Directors shall, for the purposes of this Agreement, be
deemed and treated as a termination by Rubbermaid and the Key Executive's
entitlement to compensation as provided herein and Employee Benefits shall
depend on whether or not the Board's request was based on Cause.
2. DEFINITIONS. As used in this Agreement:
(a) "Cause" shall mean only if the termination of the Key
Executive's employment with Rubbermaid or its subsidiaries shall have been the
direct result of or based solely upon (i) an intentional act of fraud,
embezzlement or theft in connection with duties with Rubbermaid and resulting or
intended to result directly or indirectly in substantial personal gain to the
Key Executive at the expense of Rubbermaid or a subsidiary; (ii) intentional
wrongful disclosure of secret processes or confidential information of
Rubbermaid or a subsidiary; or (iii) intentional wrongful damage to property of
Rubbermaid or a subsidiary, and any such act shall have been materially harmful
to Rubbermaid. The Key Executive's employment shall in no event be considered to
have been terminated by Rubbermaid for Cause if such termination took place or
was the result of (x) bad judgment or negligence, (xi) any act or omission
without intent of directly or indirectly gaining therefrom a profit to which the
Key Executive was not legally entitled, (xii) any act or omission believed in
good faith by the Key Executive to have been in or not opposed to the interests
of Rubbermaid or a subsidiary, or (xiii) any act or omission in respect of which
a determination is made that the Key Executive met the applicable standard of
conduct prescribed for mandatory or permissive indemnification or reimbursement
or payment of expenses under the Code of Regulations of Rubbermaid or the laws
of the State of Ohio, in each case as in effect at the time of such act or
omission. The Key Executive also shall not be deemed to have been terminated for
Cause
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unless and until there shall have been delivered to him a copy of a resolution,
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Rubbermaid Board of Directors at a meeting of the Board
called and held for such purpose (after reasonable notice to the Key Executive
and an opportunity for him, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, the Key Executive
was guilty of conduct set forth in clauses (a)(i) or (a)(ii) or (a)(iii) of the
first sentence of this paragraph and specifying the particulars thereof in
detail.
(b) "Change in Control" means the occurrence of any of the
following events:
(i) Rubbermaid is merged, consolidated or reorganized into
or with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than two-thirds of the combined
voting power of the then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate by the holders of
the combined voting power of the then-outstanding securities entitled to vote
generally in the election of directors ("Voting Stock") of Rubbermaid
immediately prior to such transaction;
(ii) Rubbermaid sells or otherwise transfers all or
substantially all of its assets to another corporation or other legal entity,
and as a result of such sale or transfer less than two-thirds of the combined
voting power of the then-outstanding securities of such corporation or entity
immediately after such sale or transfer is held in the aggregate by the holders
of Voting Stock of Rubbermaid immediately prior to such sale or transfer;
(iii) There is a report filed on Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report), each as promulgated pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person (as the term "person" is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the
term "beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities representing 15% or
more of the Voting Stock of Rubbermaid;
(iv) Rubbermaid files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing in
response to Form 8-K or Schedule 14A (or any successor schedule, form or report
or item
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therein) that a change in control of Rubbermaid has occurred or will occur in
the future pursuant to any then-existing contract or transaction; or
(v) If, during any period of two (2) consecutive years,
individuals who at the beginning of any such period constitute the Directors of
Rubbermaid cease for any reason to constitute at least a majority thereof;
PROVIDED, HOWEVER, that for purposes of this clause (v) each Director who is
first elected, or first nominated for election by the holders of the Voting
Stock, by a vote of at least two-thirds of the Directors of Rubbermaid (or a
committee thereof) then still in office who were Directors of Rubbermaid at the
beginning of any such period will be deemed to have been a Director of
Rubbermaid at the beginning of such period.
Notwithstanding the foregoing provisions of Sections 2(b)(iii) or
2(b)(iv), unless otherwise determined in a specific case by majority vote of the
Board, a Change in Control shall not be deemed to have occurred for purposes of
Sections 2(b)(iii) or 2(b)(iv) solely because (1) Rubbermaid, (2) an entity in
which Rubbermaid directly or indirectly beneficially owns 50% or more of the
voting equity securities (a "Subsidiary"), or (3) any employee stock ownership
plan or any other employee benefit plan of Rubbermaid or any Subsidiary either
files or becomes obligated to file a report or a proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) under the Exchange Act
disclosing beneficial ownership by it of shares of Voting Stock, whether in
excess of 15% or otherwise, or because Rubbermaid reports that a change in
control of Rubbermaid has occurred or will occur in the future by reason of such
beneficial ownership.
(c) "Date of Termination" shall mean the date specified in the
Notice of Termination.
(d) "Employee Benefits" means the perquisites, benefits and
service credit for benefits as provided under any and all welfare benefit
policies, plans, programs or arrangements in which the Key Executive is entitled
to participate, including without limitation any welfare benefit, pension,
deferred compensation, group or other life, health, medical/hospital or other
insurance (whether funded by actual insurance or self-insured by Rubbermaid),
disability, salary continuation, expense reimbursement and other welfare benefit
policies, plans, programs or arrangements that may now exist or any successor
policies, plans, programs or arrangements that may be adopted hereafter,
providing perquisites, benefits and
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service credit for benefits at least as great in the aggregate as are payable
thereunder immediately prior to a Change in Control.
(e) "Good Reason" shall mean any one or more of the following
situations, if not fully remedied within ten (10) calendar days after written
notice to Rubbermaid from the Key Executive of such determination:
(i) Failure by Rubbermaid to honor any of its material
obligations under this Agreement; or
(ii) Any purported termination of the Key Executive's
employment that is not effected pursuant to a Notice of Termination satisfying
the requirements of Section 3 below and, for purposes of this Agreement, no such
purported termination shall be effective; or
(iii) Failure to elect or reelect or otherwise to maintain
the Key Executive to or in the office or the position (or a substantially
equivalent office or position) in Rubbermaid or a subsidiary (or a successor
company or division) that the Key Executive held immediately prior to a Change
in Control, or the removal of or failure to reelect the Key Executive as a
Director of Rubbermaid or a subsidiary, if the Key Executive shall have been a
Director of Rubbermaid or such subsidiary immediately prior to such removal or
failure to reelect; or
(iv) The Key Executive's overall compensation or perquisites
are reduced or adversely modified, or the Key Executive's authority or duties
are materially changed, in either case without the voluntary prior written
consent of the Key Executive. For purposes of this Agreement, the Key
Executive's authority or duties shall be conclusively considered to have been
"materially changed" if, without the Key Executive's express and voluntary
written consent, there is any substantial diminution or adverse modification in
the Key Executive's title, status, overall position, responsibilities, reporting
relationship, general working environment (including without limitation
secretarial and staff support, offices, and frequency and mode of travel), or
if, without the Key Executive's express and voluntary written consent, the Key
Executive's job location is transferred to a site more than twenty-five (25)
miles away from his place of employment as of the date of the Change in Control;
or
(v) A determination by the Key Executive made in good faith
that as a result of a change in circumstances significantly affecting his
position, including without limitation, a change in the scope of the business or
other activities
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for which he was responsible as of the date of this Agreement or on the date of
a Change in Control, he has been rendered substantially unable to carry out, has
been substantially hindered in the performance of, or has suffered a substantial
reduction in any of the authorities, powers, functions, responsibilities or
duties attached to the position held by the Key Executive as of the date hereof
or on the date of a Change in Control.
(f) "Severance Payment" shall mean a lump sum amount equal to the
product of (a) three, multiplied by (b) the sum of the items described in
clauses (i) through (iv):
(i) the amount of annualized base salary that the Key
Executive is earning immediately prior to the Qualifying Termination, or if
greater, immediately prior to a Change in Control of Rubbermaid;
(ii) the greatest of (A) the amount that the Key Executive
received or earned from any Rubbermaid annual incentive bonus plan with respect
to the fiscal year immediately preceding the fiscal year in which the Qualifying
Termination occurs or (B) the amount the Key Executive received with respect to
the fiscal year in which the Qualifying Termination occurs or (C) the amount the
Key Executive received under the Plan with respect to the fiscal year
immediately prior to a Change in Control of Rubbermaid;
(iii) the dollar value of the Key Executive's most recent
long term incentive award prior to the Qualifying Termination or, if greater;
immediately prior to a Change in Control of Rubbermaid, and
(iv) $50,000.00, which shall be increased by a percentage
equal to the percentage increase in the U.S. Consumer Price Index from 1996 to
the Date of Termination as published by the United States Department of Labor,
Bureau of Labor Statistics.
3. NOTICE OF TERMINATION. Any termination of the Key Executive's
employment by Rubbermaid or any subsidiary or by the Key Executive shall be
communicated by a written notice to the other party hereto (the "Notice of
Termination"). The Notice of Termination shall specify the date on which the Key
Executive's employment shall terminate (which date shall not be less than ten
(10) nor more than twenty-one (21) calendar days after the date that the Notice
of Termination is deemed to have been duly given (as provided in Section 19) and
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indicate the specific provision in this Agreement that is applicable and is
being relied upon, and if the termination is by the Company for Cause, shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment.
4. INDEMNIFICATION FOR GOLDEN PARACHUTE EXCISE TAX.
(a) In the event that it shall be determined that any payment,
benefit or distribution provided, or to be provided, by Rubbermaid (or by any
person whose actions result in a Change in Control or any person affiliated with
Rubbermaid or such person) to or for the benefit of the Key Executive under the
terms of this Agreement, or under any other agreement, plan or arrangement with
Rubbermaid (or with any person whose actions result in a Change in Control or
any person affiliated with Rubbermaid or such person), would be subject to any
excise tax imposed pursuant to Section 4999 of the Internal Revenue Code of
1986, as amended, or any comparable provision of state or local law (an "Excise
Tax"), Rubbermaid agrees that it will promptly pay or cause to be paid to the
Key Executive, in addition to any other payments made or required to be made
pursuant to the terms of this Agreement, an additional amount in cash (a
"Gross-Up Payment") equal to the sum of (i) the amount of such Excise Tax plus
(ii) all Attributable Taxes and Penalties. For purposes of this Agreement,
"Attributable Taxes and Penalties" means all taxes, interest and penalties,
including, without limitation, any federal, state and local income taxes and any
Excise Taxes, which become payable by the Key Executive as a result of the
receipt of the Gross-Up Payment or the assessment of any Excise Tax against the
Key Executive. It is intended that under this provision Rubbermaid will
indemnify the Key Executive in such a manner that the Key Executive shall not
suffer any loss or expense by reason of the assessment of any Excise Tax or the
reimbursement of the Key Executive for payment of any such Excise Tax.
(b) In determining the amount of any Gross-Up Payment payable
pursuant to Paragraph (a) above, the Key Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income taxation in
the calendar year in which the Gross-Up Payment is to be made, and state and
local taxes at the highest marginal rates of taxation for such year in the state
and locality of the Key Executive's residence. For such purposes, federal income
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taxes shall be determined net of the maximum reduction in such federal income
taxes that could be obtained from the deduction of such state and local taxes.
(c) Within thirty (30) days after the Key Executive's Date of
Termination, KPMG Peat Marwick, or such other nationally recognized accounting
firm selected by the Key Executive (the "Accounting Firm"), shall make a
determination as to whether any Excise Tax should be reported and paid by the
Key Executive for any period or periods by reason of any payment, benefit or
distribution under this Agreement or under any other agreement, plan or
arrangement with Rubbermaid (or with any person whose actions result in a Change
in Control or any person affiliated with Rubbermaid or such person). If the
Accounting Firm determines that any Excise Tax should be reported and paid by
the Key Executive, the Accounting Firm shall also determine the amount of such
Excise Tax and the amount of the Gross-Up Payment required to be paid to the Key
Executive by Rubbermaid with respect to such Excise Tax. In such event,
Rubbermaid shall, within five (5) business days after such determination, pay or
cause to be paid to the Key Executive the amount of the Gross-Up Payment with
respect to the Excise Tax as determined by the Accounting Firm, and the Key
Executive shall report and pay the Excise Tax as so determined. If the
Accounting Firm determines that no Excise Tax should be reported and paid by the
Key Executive, it shall furnish the Key Executive with its opinion that there is
substantial authority not to report any Excise Tax, and the Key Executive shall
prepare and file his tax returns in accordance with such advice until such time
as the Internal Revenue Service (the "IRS") or any applicable state taxing
authority shall notify the Key Executive that such manner of reporting is
improper. Rubbermaid shall be responsible for all fees and expenses connected
with the determinations by the Accounting Firm Pursuant to this Section 4.
(d) In the event that the Key Executive is at any time required
to pay any Excise Tax (or any interest or penalties with respect to any Excise
Tax) in addition to any amount determined pursuant to Paragraph (c) by reason of
any payment, benefit or distribution under this Agreement or under any other
agreement, plan or arrangement with Rubbermaid (or with any person whose actions
result in a Change in Control or any person affiliated with Rubbermaid or such
person), within five (5) business days after the Key Executive notifies
Rubbermaid of such required additional Excise Tax (or additional interest or
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penalties) Rubbermaid shall pay or cause to be paid to the Key Executive a
Gross-Up Payment determined with respect to such additional Excise Tax (and any
such additional interest and penalties). In the event that the Key Executive
receives any refund of any Excise Tax with respect to which the Key Executive
has previously received a Gross-Up Payment hereunder, the Key Executive shall
promptly pay to Rubbermaid the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto).
(e) The Key Executive agrees to notify Rubbermaid in a timely
manner in the event of any audit or other proceeding by the IRS or any taxing
authority in which the IRS or other taxing authority asserts that any Excise Tax
should be assessed against the Key Executive and to cooperate with Rubbermaid
(at Rubbermaid's sole cost and expense) in contesting any such proposed
assessment with respect to such Excise Tax (a "Proposed Assessment"). The Key
Executive agrees not to settle any Proposed Assessment without the consent of
Rubbermaid. If, however, the Key Executive's tax liability for any year cannot
be finally resolved principally by reason of a failure to settle a Proposed
Assessment, the Key Executive may demand that Rubbermaid settle the Proposed
Assessment. If Rubbermaid does not settle the Proposed Assessment, or does not
consent to allow the Key Executive to settle the Proposed Assessment, within ten
(10) days following such demand, Rubbermaid shall indemnify and hold harmless
the Key Executive (i) with respect to any additional interest and/or penalties
that the Key Executive is required to pay by reason of the delay in finally
resolving the Key Executive's tax liability and (ii) with respect to any taxes,
interest and penalties that the Key Executive is required to pay by reason of
any indemnification payment under this Paragraph.
5. COMPETITIVE ACTIVITY. During a period ending one (1) year following
the Date of Termination, if the Key Executive shall have received or shall be
receiving benefits under this Agreement, the Key Executive shall not engage in
any Competitive Activity, without the prior written consent of Rubbermaid, which
consent shall not unreasonably be withheld. For purposes of this Agreement, the
term "Competitive Activity" shall mean the Key Executive's participation,
without the written consent of an officer of Rubbermaid, in the management of
any business enterprise if such enterprise engages in substantial and direct
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competition with Rubbermaid and such enterprise's sales of any product or
service competitive with any product or service of Rubbermaid amounted to 10% of
such enterprise's net sales for its most recently completed fiscal year and if
Rubbermaid's net sales of said product or service amounted to 10% of
Rubbermaid's net sales for its most recently completed fiscal year. "Competitive
Activity" shall not include (i) the mere ownership of securities in any such
enterprise and the exercise of rights appurtenant thereto or (ii) participation
in the management of any such enterprise other than in connection with the
competitive operations of such enterprise.
6. WITHHOLDING OF TAXES. Rubbermaid may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling.
7. LEGAL FEES AND EXPENSES. It is the intent of Rubbermaid that the
Key Executive not be required to incur any legal fees or disbursements
associated with, (i) the interpretation of any provision in, or obtaining of any
right or benefit under this Agreement, or (ii) the enforcement of his rights
under this Agreement, including without limitation by litigation or other legal
action, because the cost and expense thereof would substantially detract from
the benefits intended to be extended to the Key Executive hereunder.
Accordingly, Rubbermaid irrevocably authorizes the Key Executive from time to
time to retain counsel of his choice, at the expense of Rubbermaid as hereafter
provided, to represent the Key Executive in connection with the interpretation
and/or enforcement of this Agreement, including without limitation the
initiation or defense of any litigation or other legal action, whether by or
against Rubbermaid, or any Director, officer, stockholder or other person
affiliated with Rubbermaid in any jurisdiction. Rubbermaid shall pay or cause to
be paid and shall be solely responsible for any and all attorneys' and related
fees and expenses incurred by the Key Executive under this Section 7.
8. LATE PAYMENT OR REIMBURSEMENT. In the event Rubbermaid does not
make or provide any payment, reimbursement or benefit when due, then the amount
or value of such payment, reimbursement or benefit shall be deemed to bear
interest, from the due date until the date the payment, reimbursement or
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benefit is made or provided, at a rate equal to the Prime Rate as announced from
time to time by Xxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxx plus three (3) percentage
points or, if less, the maximum rate permitted by applicable law. Such
additional amount shall be in addition to, and not in lieu of, any and all other
amounts due to the Key Executive under this Agreement.
9. NOT A CONTRACT OF EMPLOYMENT - OTHER BENEFITS - TERMINATION PRIOR
TO CHANGE IN CONTROL. This Agreement shall be effective and binding immediately
upon its execution, but, except as provided in the last sentence of this Section
9, this Agreement shall not be operative unless and until there shall have
occurred a Change in Control. The terms and conditions of this Agreement shall
not be deemed to constitute a contract of employment between Rubbermaid or a
subsidiary and the Key Executive prior to a Change in Control, and the Key
Executive shall have no rights against Rubbermaid or a subsidiary except as may
otherwise be specifically provided herein. Moreover, nothing in this Agreement
shall be deemed to give the right to be retained in the service of Rubbermaid or
a subsidiary or to interfere with the right of Rubbermaid or a subsidiary to
discipline or discharge the Key Executive at any time.
Any termination of employment of the Key Executive or the
removal of the Key Executive from the office or position in Rubbermaid or a
Subsidiary following the commencement of any discussion with a third party that
ultimately results in a Change in Control shall be deemed to be a termination or
removal of the Key Executive without Cause after a Change in Control for
purposes of this Agreement.
10. NO OBLIGATION TO MITIGATE DAMAGES: NO EFFECT ON OTHER CONTRACTUAL
RIGHTS. The Key Executive shall not be required to mitigate damages or the
amount of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for under
this Agreement be reduced by any compensation earned by Key Executive as the
result of employment by another employer after the date of termination of his
employment with Rubbermaid, or otherwise.
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11. RELEASE. Payment of the Severance Payment set forth in Section 2(f)
hereof is conditioned upon the Key Executive executing and delivering a release
reasonably satisfactory to Rubbermaid releasing Rubbermaid from any and all
claims, demands, damages, actions and/or causes of action whatsoever, which he
may have had on account of the termination of his employment, including, but not
limited to claims of discrimination, including on the basis of sex, race, age,
national origin, religion, or handicapped status (with all applicable periods
during which the Key Executive may revoke the release or any provision thereof
having expired); and any and all claims, demands and causes of action for
retirement (other than under any Rubbermaid retirement plan, deferred
compensation plan or any Company medical plan with respect to claims thereunder)
or severance or other termination pay. Such Release shall not, however, apply to
the obligations of Rubbermaid arising under this Agreement, or rights of
indemnification the Key Executive may have under Rubbermaid's Code of
Regulations or by statute.
12. SUCCESSORS BINDING AGREEMENT. Rubbermaid will require that any
successor (whether direct or indirect, by purchase of stock or assets, by
merger, by consolidation or otherwise) to all or substantially all of the
business and/or assets of Rubbermaid be liable for the obligations owed to the
Key Executive hereunder and will require that any such successor perform this
Agreement in the same manner and to the same extent that Rubbermaid is obligated
to perform it. Any succession shall not, however, relieve or alter Rubbermaid's
continuing liability for all obligations owing to the Key Executive hereunder.
The parties hereto agree, however, that the Key Executive's employment by a
successor to Rubbermaid, if consistent with the terms and provisions of this
Agreement, will not be deemed a termination of the Key Executive's employment
with Rubbermaid or a subsidiary.
The foregoing assumption shall be accomplished by a written agreement
satisfactory in form and substance to the Key Executive. Failure of Rubbermaid
to obtain such an agreement prior to the effectiveness of any such succession
shall be a material breach of this Agreement and shall entitle the Key Executive
to the Severance Payment and Employee Benefits as provided in Section 1 above as
though the Key Executive terminated his employment for Good Reason, except that
for purposes of implementing the foregoing, the date on which any such
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succession becomes effective shall be deemed the Date of Termination. As used
herein, "Rubbermaid" shall be deemed to include any successor to Rubbermaid or
any other person which otherwise becomes bound by the terms and provisions of
this Agreement.
This Agreement shall inure to the benefit of and shall be enforceable
by the Key Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributes, devisees, and legatees. If the
Key Executive should die while any amount or benefit would still be payable or
providable hereunder had the Key Executive continued to live, all such amounts
and benefits shall be paid or provided in accordance with the terms of this
Agreement to his devisee, legatee, or other designee or, if there be no such
designee, to his estate.
13. TERMINATION OF AGREEMENT. The term of this Agreement (the "Term")
shall commence as of the date hereof and shall expire as of the later of the
close of business on December 31, 1997, and the expiration of any Change in
Control employment guarantee; provided, however, that (A) the term of this
Agreement shall automatically be extended for an additional year unless, not
later than November 30 of the immediately preceding year, Rubbermaid or the Key
Executive shall have given notice that it or he, as the case may be, does not
wish to have the Term extended, and (B) subject to Sections 1 and 9 hereof, if
prior to a Change in Control, the Key Executive ceases for any reason to be an
employee of Rubbermaid or a subsidiary, thereupon this Agreement shall
immediately terminate and be of no further effect; and provided further,
however, that notwithstanding any notice by Rubbermaid to terminate this
Agreement, if a Change in Control shall have occurred prior to the Termination
Date this Agreement shall continue in effect for a period of five (5) years from
the date of the occurrence of the Change in Control.
14. TRUST AGREEMENT. To ensure that the provisions of this Agreement
can be enforced by the Key Executive in the event of an imminent Change in
Control, the Board of Directors of Rubbermaid Incorporated, upon the
recommendation of the Compensation and Management Development Committee of that
Board, may establish a trust or trusts and fund such trust or trusts with
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sufficient principal to pay Key Executive's Severance Payment and Employee
Benefits.
15. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by both parties hereto. 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 that are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Ohio.
16. VALIDITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, all of which shall remain in full force
and effect.
17. NON-EXCLUSIVITY. Except with respect to prior agreements regarding
severance payments, which are addressed in Section 18, the provisions of this
Agreement, and any payment provided for hereunder, shall not reduce any amounts
otherwise payable, or in any way diminish Key Executive's existing rights, or
rights which would accrue solely as a result of the passage of time, under any
other employment agreement or other contract, plan or arrangement with
Rubbermaid or a subsidiary.
18. PRIOR AGREEMENT. This Agreement supersedes any prior agreement
between the Company and the Key Executive regarding severance payments in the
event of a Change in Control, which prior agreement shall, without further
action, be terminated as of the date hereof.
19. NOTICE. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
15
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Change in Control Employment Agreement
Page 15
delivered or mailed by United States certified mail, return receipt requested,
postage prepaid, addressed to the respective addressees set forth below,
provided that all notices to Rubbermaid (or any successor to Rubbermaid) shall
be directed to the attention of the Chairman or the Secretary of Rubbermaid (or
any successor to Rubbermaid), or to such other address as any party may have
furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
If to the Key Executive, at Key Executive's home address as maintained
in the records of Rubbermaid.
If to Rubbermaid: Rubbermaid Incorporated
0000 Xxxxx Xxxx
Xxxxxxx, Xxxx 00000
Attn: Corporate Secretary
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have entered into this Agreement
effective as of the date and year first above written.
"KEY EXECUTIVE" RUBBERMAID INCORPORATED
an Ohio corporation
/S/ XXXXXXXX X. XXXXXXX /S/ XXXXX X. XXXXXX
------------------------- ----------------------
By: XXXXXXXX X. XXXXXXX By: XXXXX X. XXXXXX
Title: SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
