EXHIBIT 10.d
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, effective as of January 1, 1997 (the
"Effective Date"), by and between XXXXXX X. XXXX (the "Executive") and SUNBEAM
CORPORATION, a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Executive is currently employed by the Company; and
WHEREAS, Company desires to retain the Executive and the Executive
desires to furnish services to the Company on the terms and conditions
hereinafter set forth; and
WHEREAS, the parties desire to enter into this Agreement setting forth
the revised terms and conditions of the employment relationship of the Executive
with the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive, and
the Executive hereby accepts such employment, on the terms and conditions
hereinafter set forth.
2. EMPLOYMENT PERIOD. The period of employment of the Executive by the
Company hereunder (the "Employment Period") shall commence on the Effective Date
and shall end on December 31, 1999 (or the Date of Termination (as defined in
Section 6 below), if earlier).
3. POSITION AND DUTIES. The Executive shall serve as Executive Vice
President, Worldwide Consumer Products, and shall have such responsibilities,
duties and authority as are consistent with such position and such other duties
as may from time to time be assigned to him by the Chief Executive Officer. The
Executive agrees to devote substantially all his working time, attention and
energies to the performance of his duties for the Company.
4. PLACE OF PERFORMANCE. The principal place of employment of the
Executive shall be at the Company's principal executive offices in Palm Beach
County, Florida, or such other location as may be agreed to by the Board. In the
event that the Company's principal executive offices are moved from Palm Beach
County, Florida, the Company shall promptly pay, or reimburse the Executive
for, all reasonable expenses incurred by the Executive relating to any change of
the Executive's residence from Palm Beach County, Florida, in connection with
his employment hereunder, including, without limitation, reasonable expenses
for himself and his family of travel, moving, storage and suitable lodging and
maintenance, and the Company shall reimburse the Executive on a grossed up basis
in the event that any tax is assessed upon him in relation to any such expenses.
The Company shall pay or reimburse the Executive for all reasonable costs and
expenses of residential relocation incurred by him in connection with each and
every additional change, if any, in the location of the principal executive
offices of the Company, and the Executive shall be reimbursed by the Company on
a grossed up basis in the event that any tax is assessed upon him in relation to
any such costs or expenses.
5. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. As compensation for the performance by the
Executive of his duties hereunder, during the Employment Period the Company
shall pay the Executive a base salary
at an annual rate of $400,000 (the "Base Salary"), which Base Salary
shall be payable in substantially equal semi-monthly installments. It is agreed
that there shall be no increase or decrease in the Base Salary during the
Employment Period. The parties agree that the Executive shall not be entitled to
participate in any other bonus or incentive compensation programs of the
Company.
(b) STOCK OPTION GRANTS. Effective as of the Effective Date, by
action of the Executive Development and Compensation Committee of the Board of
Directors, the Executive has been granted (in addition to options previously
granted to him) a stock option (the "Option Award") to purchase 100,000 shares
of Common Stock pursuant to the Company's Equity Team Plan ("Option Plan"),
which options are granted upon the terms and conditions as set forth in the
Option Plan (at an exercise price of $25.73 per share). Such Option Award shall
vest in equal increments on the first, second and third anniversaries of the
grant date and shall be subject to and modified by all other terms and
provisions of this Agreement, as expressly set forth herein. In the event of any
conflict between any terms of the Option Plan and the terms and provisions of
this Agreement, the terms and provisions of this Agreement shall take precedence
and shall be controlling as between such documents.
(c) EXPENSES. During the Employment Period, the Company shall
reimburse the Executive for all reasonable business expenses in
accordance with applicable policies and procedures then in force.
(d) VACATION AND OTHER ABSENCES. The Executive shall be entitled
to paid vacation and other paid absences, whether for holidays, illness,
personal time or any similar purposes, during the Employment Period in
accordance with policies applicable generally to other Executive Vice Presidents
of the Company; provided, however, that the Executive shall always be entitled
to at least six weeks of paid vacation in each calendar year and pro rata for
part of a year. Up to four weeks per year of unused vacation may be maintained
by the Executive on a cumulative basis and may be subsequently used in any year
or if not so used, the Executive shall be compensated for any unused vacation
days upon the termination of this Agreement for any reason.
(e) TAX PLANNING SERVICES. During the Employment Period, the
Company shall provide the Executive with tax-related advice and services without
cost or expense to him and shall reimburse the Executive on a grossed up basis
in the event that any tax is assessed upon him in relation to such services.
(f) OTHER BENEFITS. During the Employment Period, the Executive
shall be eligible to participate at no cost or expense to him in welfare plans
and programs (including any tax-deferred savings plan, group life insurance
plan, medical and dental insurance plan, and accident and disability insurance
plan) ("Benefit Plans") applicable generally to employees and/or senior
executives of the Company. The Company will waive, or obtain the waiver of, any
waiting periods for eligibility under the Benefit Plans or will provide
comparable benefits to the Executive without cost to him during the waiting
period.
6. TERMINATION. The Executive's employment hereunder may be
terminated as follows:
(a) DEATH. The Executive's employment shall terminate upon
his death, and the date of his death shall be the Date of Termination.
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(b) DISABILITY. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties hereunder on a full-time basis for one hundred and twenty
(120) consecutive days and, within thirty (30) days after written Notice of
Termination (as defined in Section 6(g) hereof), shall not have returned to the
performance of his duties hereunder on a full-time basis ("Disability"), the
Company may terminate the Executive's employment hereunder. In this event, the
Date of Termination shall be thirty (30) days after Notice of Termination is
given (provided that the Executive shall not have returned to the performance of
his duties on a full-time basis during such thirty (30) day period).
(c) CAUSE. The Company may terminate the Executive's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "Cause" to terminate the Executive's employment hereunder:
(i) upon the Executive's conviction for the
commission of a felony (or a plea of nolo contendere thereto);
(ii) willful failure by the Executive substantially
to perform his duties hereunder (other than any such failure
resulting from the Executive's incapacity due to Disability). For
purposes hereof, no act or failure to act by the Executive shall be
considered "willful" unless done or omitted to be done by him not in
good faith or without reasonable belief that his action or omission
was in the best interests of the Company or contrary to written
instructions of the Chief Executive Officer or the Board of
Directors; or
(iii) failure of the Executive to meet the
performance objectives prescribed for him by the Company's Chief
Executive Officer, in good faith, from time to time. In event
termination for Cause is premised on this subsection (c)(iii), the
Executive shall be given written notice of his performance
deficiencies and a thirty (30) day period within which to correct or
overcome those deficiencies. If the Executive shall be unable or
unwilling to correct such deficiencies in performance during such
thirty (30) day period, then his Date of Termination shall be the
date following such thirty (30) period on which the Company's Chief
Executive Officer advises the Executive in writing (in a Notice of
Termination) that he has failed to correct the deficiencies in
performance, providing in reasonable detail the reasons for such
determination by the Chief Executive Officer.
The Date of Termination shall be the date specified in the
Notice of Termination; provided, however, that, in the case of a
termination for Cause under clause (ii) above, the Date of
Termination shall not be earlier than 30 days after delivery of the
Notice of Termination. Anything herein to the contrary
notwithstanding, if, following a termination of the Executive's
employment by the Company for Cause based upon the conviction of the
Executive for a felony, such conviction is overturned in a final
determination on appeal, the Executive shall be entitled to the
payments and the economic equivalent of the benefits the Executive
would have received if his employment had been terminated by the
Company without Cause.
(d) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. The
Executive may terminate his employment hereunder for Good Reason, provided that
the Executive shall have delivered a Notice of Termination (as defined in
Section 6(g) hereof) within ninety (90) days after the occurrence of the event
of Good Reason giving rise to such termination. For purposes of this
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Agreement, "Good Reason" shall mean the occurrence of one or more of the
following circumstances, without the Executive's express written consent, which
are not remedied by the Company within thirty (30) days of receipt of the
Executive's Notice of Termination:
(i) an assignment to the Executive of any duties
materially inconsistent with his positions, duties, responsibilities and
status with the Company or any material limitation of the powers of the
Executive not consistent with the powers of the Executive contemplated
by Section 3 hereof; or
(ii) any removal of the Executive from, or any
failure to re-elect the Executive to, the executive officer position
specified in Section 3 of this Agreement (or to another senior executive
position with the Company at no decrease in compensation); or
(iii) any other material breach by the Company of
this Agreement.
In the event of a termination for Good Reason, the Date of
Termination shall be the date specified in the Notice of Termination, which
shall be no more than thirty (30) days after the Notice of Termination.
(e) OTHER TERMINATIONS. The Company may terminate the
Executive's employment hereunder at any time, subject to the provisions of
Section 7(e) hereof. The Executive may terminate his employment at any time
subject to the provisions of Section 7(d) hereof. If the Executive's employment
is terminated hereunder for any reason other than as set forth in Sections 6(a)
through 6(d) hereof, the date on which a Notice of Termination is given or any
later date (within 30 days) set forth in such Notice of Termination shall be the
Date of Termination.
(f) TERMINATION BY THE EXECUTIVE UPON CHANGE IN CONTROL.
Upon a Change in Control (as defined below), the Executive shall have the right,
upon delivery to the Company of a Notice of Termination (which shall specify a
Date of Termination not less than 30 days after such Notice of Termination), to
terminate his employment under this Agreement and to receive the payments
provided pursuant to Section 7(f) below. If the Executive shall elect to
terminate his employment with the Company other than upon a Change in Control,
he shall receive only the compensation referred to in Section 7(d) below. For
purposes of this Agreement, a Change in Control shall mean the occurrence of
any one of the following events:
(i) any "person" as such term is used in Sections
3(a)(9) and 13(d) of the Securities Exchange Act of 1934, as amended,
becomes a "beneficial owner," as such term is used in Rule 3d-3
promulgated under that Act, of 25% or more of the voting stock of the
Company (other than a person that is currently the beneficial owner of
such percentage of the Company's voting stock);
(ii) the majority of the Board consists of
individuals other than Incumbent Directors, which term means the members
of the Board on the date of this Agreement and the individuals
designated as directors by the Chief Executive Officer of the Company;
provided that any person becoming a director subsequent to such date
whose election or nomination for election was supported by two-thirds of
the directors who then comprised the Incumbent Directors shall be
considered to be an Incumbent Director;
(iii) the Company, without the Executive's
consent, adopts any
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plan of liquidation providing for the distribution of all or
substantially all of its assets; or
(iv) all or substantially all of the assets or
business of the Company are disposed of pursuant to a merger,
consolidation or other transaction (unless the shareholders of the
Company immediately prior to such merger, consolidation or other
transaction beneficially own, directly or indirectly, in substantially
the same proportion as they owned the voting stock of the Company, all
of the voting stock or other ownership interests of the entity or
entities, if any, that succeed to the business of the Company).
(g) NOTICE OF TERMINATION. Any termination of the
Executive's employment hereunder by the Company or by the Executive (other than
termination pursuant to Section 6(a) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 13
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set 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. If any dispute concerning a Notice of Termination of
the Executive's employment under Section 6(b), 6(c) or 6(d) hereof results in a
determination that a proper basis for such termination did not exist under such
section, the Executive's employment under this Agreement shall be treated, with
respect to a Notice of Termination pursuant to Section 6(b) or 6(c) hereof, as
having been terminated pursuant to Section 6(e) hereof or, with respect to a
Notice of Termination pursuant to Section 6(d) hereof, as having not been
terminated.
7. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) DISABILITY PERIOD. During any period during the
Employment Period that the Executive fails to perform his duties hereunder as a
result of incapacity due to physical or mental illness ("Disability Period"),
the Executive shall continue to (i) receive his full Base Salary and (ii)
participate in the Benefit Plans. Such payments made to the Executive during the
Disability Period shall be reduced by the sum of the amounts, if any, payable to
the Executive at or prior to the time of any such payment under disability
benefit plans of the Company or under the Social Security disability insurance
program, and which amounts were not previously applied to reduce any such
payment.
(b) DEATH. If the Executive's employment hereunder is
terminated as a result of death, then:
(i) the Company shall pay the Executive's estate or
designated beneficiary, as soon as practicable after the Date of
Termination, any Base Salary installments due in the month of death and
any reimbursable expenses, accrued or owing the Executive hereunder as
of the Date of Termination; and
(ii) the Options granted to the Executive pursuant
to the Option Award shall become vested and exercisable, as of the Date
of Termination, to the extent such Option Award would have otherwise
become vested on or before the first anniversary of the Date of
Termination, and all vested Options shall remain exercisable for a
period of one year following such Date of Termination and shall
thereafter be completely forfeited and canceled; any Options that would
not have become vested and exercisable on or before the first
anniversary of the Date of Termination shall terminate and be forfeited
as of the
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Date of Termination.
(c) DISABILITY. If the Executive's employment hereunder is
terminated as a result of Disability, then:
(i) the Company shall pay the Executive, as soon as
practicable after the Date of Termination, any Base Salary and any
reimbursable expenses, accrued or owing the Executive hereunder for
services as of the Date of Termination; and
(ii) the Options granted to the Executive pursuant
to the Option Award shall become vested and exercisable, as of the Date
of Termination, to the extent such Option Award would have otherwise
become vested on or before the first anniversary of the Date of
Termination, and all vested Options shall remain exercisable for a
period of three years following such Date of Termination and shall
thereafter be completely forfeited and canceled; any Options that would
not have become vested and exercisable on or before the first
anniversary of the Date of Termination shall terminate and be forfeited
as of the Date of Termination.
(d) CAUSE OR BY EXECUTIVE OTHER THAN FOR GOOD REASON. If
the Executive's employment hereunder is terminated by the Company for Cause or
by the Executive other than for Good Reason, then:
(i) the Company shall pay the Executive, as soon as
practicable after the Date of Termination, any Base Salary and any
reimbursable expenses accrued or owing the Executive hereunder for
services as of the Date of Termination; and
(ii) the Executive shall immediately forfeit any
unvested portion of the Option Award. In the event of termination by the
Company for Cause, the Executive shall have the right to exercise the
vested unexercised portion of the Option Award for a period of ninety
(90) days after the Date of Termination, and the unexercised portion of
such Option Award shall be forfeited thereafter. In the event of
termination by the Executive other than for Good Reason the Executive
shall have the right to exercise the vested unexercised portion of the
Option Award for a period of one year following the Date of Termination
and the unexercised portion of such Option Award shall be forfeited
thereafter.
(e) TERMINATION BY COMPANY WITHOUT CAUSE OR BY THE
EXECUTIVE WITH GOOD REASON. If the Executive's employment hereunder is
terminated by the Company (other than for Cause or Disability) or by the
Executive for Good Reason, then:
(i) the Company shall pay the Executive, as soon as
practicable after the Date of Termination, any Base Salary and any
reimbursable expenses, accrued or owing the Executive hereunder for
services as of the Date of Termination;
(ii) the Company shall immediately pay to the
Executive as liquidated damages and not as a penalty a lump sum amount
equal to the total Base Salary that would have otherwise been payable to
the Executive with respect to the period commencing immediately
following the Date of Termination and ending on July 29, 1999, at the
annualized rate in effect at the time Notice of Termination is given;
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(iii) the Options granted to the Executive pursuant
to the Option Award shall become fully vested and exercisable, as of the
Date of Termination, and the Option Award shall remain exercisable for
the balance of its original 10-year term; and
(iv) the Executive shall continue to participate in
all employee benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of Termination, in
accordance with the terms of such plans and programs as in effect from
time to time, through December 31, 1999; provided that the Executive's
continued participation is permitted under the general terms and
provisions of such plans and programs. In the event that the Executive's
participation in any such plan or program is barred, the Company shall
arrange to provide the Executive and his dependents with benefits
substantially the same as those which the Executive and his dependents
would otherwise have been entitled to receive under such plans and
programs from which their continued participation is barred or provide
their economic equivalent.
(f) TERMINATION UPON CHANGE IN CONTROL. If the
Executive shall elect to terminate his employment under this Agreement
upon a Change in Control, the Company shall pay to the Executive the
payments described in Sections 7(e)(i), (ii), (iii) and (iv) above.
8. GROSS-UP FOR EXCISE TAX. In the event that the Executive
receives any payment or benefit (including but not limited to the payments or
benefits pursuant to Section 7 of this Agreement) (a "Payment") that is subject
to the excise tax (the "Excise Tax") under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the
Executive, as soon thereafter as practicable, an additional amount (a "Gross-Up
Payment") such that the net amount retained by the Executive, after deduction
of any Excise Tax imposed upon the Payment and any federal, state and local
income tax and Excise Tax imposed upon the Gross-Up Payment shall be equal to
the Payment. The determination of whether an Excise Tax is due in respect of any
payment or benefit, the amount of the Excise Tax and the amount of the Gross-Up
Payment shall be made by an independent auditor (the "Auditor") jointly selected
by the Company and the Executive and paid by the Company. If the Executive and
the Company cannot agree on the firm to serve as the Auditor, then the Executive
and the Company shall each select one nationally recognized accounting firm and
those two firms shall jointly select the nationally recognized accounting firm
to serve as the Auditor. Notwithstanding the foregoing, for purposes of
determining the Gross-Up Payment in respect of any Payment, (i) any other
payments or benefits received or to be received by the Executive in connection
with a Change in Control or the Executive's termination of employment (whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any person whose actions result in a Change in
Control or any person affiliated with the Company or such person) shall be
treated as "parachute payments" within the meaning of Section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of Section 280G of
the Code shall be treated as subject to the Excise Tax, unless in the opinion of
tax counsel selected by the Auditor, such other payments or benefits (in whole
or in part) do not constitute parachute payments, or are otherwise not subject
to the Excise Tax, and (ii) the Executive shall be deemed to pay federal income
tax at the highest marginal rate applicable in the calendar year in which the
Gross-Up Payment is made, and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Executive's residence
on the Date of Termination, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes. In the
event the actual Excise Tax or such income tax is more or less than the amount
used to calculate the Gross-Up Payment, the
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Executive or the Company, as the case may be, shall pay to the other an amount
reflecting the actual Excise Tax or such income tax0 , plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code.
9. MITIGATION. The Executive shall not be required to mitigate
amounts payable pursuant to Section 7 hereof by seeking other employment or
otherwise, nor shall there be any offset against such payments on account of (a)
any remuneration attributable to any subsequent employment that he may obtain or
(b) any claims the Company may have against the Executive.
10. CONFIDENTIAL INFORMATION, REMOVAL OF DOCUMENTS,
NON-COMPETITION.
(a) CONFIDENTIAL INFORMATION. The Executive shall hold in
a fiduciary capacity for the benefit of the Company and its subsidiaries (the
"Sunbeam Entities") all trade secrets, confidential information, and knowledge
or data relating to the Sunbeam Entities and the businesses and investments of
the Sunbeam Entities, which shall have been obtained by the Executive during the
Executive's employment by the Company, including such information with respect
to any products, improvements, formulas, designs or styles, processes, services,
customers, suppliers, marketing techniques, methods, future plans or operating
practices ("Confidential Information"); PROVIDED, HOWEVER, that Confidential
Information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive) or any
specific information or type of information generally not considered
confidential by persons engaged in the same business as the Company, or
information disclosed by the Company or any officer thereof to a third party
without restrictions on the disclosure of such information. Except as may be
required or appropriate in connection with his carrying out his duties under
this Agreement, the Executive shall not, without the prior written consent of
the Company or as may otherwise be required by law or legal process, communicate
or divulge any such Confidential Information to anyone other than the Company
and those designated by the Company.
(b) REMOVAL OF DOCUMENTS. All records, files, drawings,
documents, models, and the like relating to the business of the Sunbeam
Entities, which the Executive prepares, uses or comes into contact with and
which contain Confidential Information shall not be removed by the Executive
from the premises of any Sunbeam Entity (without the written consent of the
Company) during or after the Employment Period unless such removal shall be
required or appropriate in connection with his carrying out his duties under
this Agreement, and, if so removed by the Executive, shall be returned to such
Sunbeam Entity immediately upon termination of the Executive's employment
hereunder.
(c) NON-COMPETITION. During (i) the Executive's employment
with the Company and (ii) the two (2) year period immediately following the
Executive's Date of Termination, the Executive (A) shall not engage, anywhere
within the geographical areas in which any Sunbeam Entity is then conducting its
business operations, directly or indirectly, alone, in association with or as
a shareholder, principal, agent, partner, officer, director, employee or
consultant of any other organization, in any business (a "Competitive Business")
which competes with any business then being conducted by such Sunbeam Entity;
(B) shall not solicit or encourage any officer, employee or consultant of any of
the Sunbeam Entities to leave the employ of any of the Sunbeam Entities for
employment by or with any Competitive Business; and (C) shall not solicit,
divert or take away, or attempt to divert or to take away, the business or
patronage of any of the customers or accounts, or prospective customers or
accounts, of any Sunbeam Entity, which were contacted, solicited or served by
the Executive while employed by the Company; provided, however,
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that nothing herein shall prohibit the Executive from owning a maximum of two
percent (2%) of the outstanding stock of any publicly traded corporation.
Following the Date of Termination, ownership by the Executive of not more than
five percent (5%) of any publicly traded corporation shall not constitute a
violation hereof. If, at any time, the provisions of this Section 10(c) shall be
determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 10(c) shall
be considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
the Executive agrees that this Section 10(c) as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein. For purposes of this Section 10(c), the design, manufacture and
marketing of outdoor barbecue grills, casual outdoor and indoor furniture and
small kitchen appliances shall be construed to be a Competitive Business;
provided, however, that the gross revenues derived from sales of such products
by such competitor are greater than the lesser of (i) 10% of its total revenues
and (ii) $500,000,000.
(d) REMEDIES. In the event of a breach or threatened
breach of this Section 10, the Executive agrees that the Company shall be
entitled to apply for injunctive relief in a court of appropriate jurisdiction
to remedy any such breach or threatened breach, the Executive acknowledging
that damages would be inadequate and insufficient.
(e) CONTINUING OPERATION. Any termination of the
Executive's employment or of this Agreement shall have no effect on the
continuing operation of this Section 10.
11. INDEMNIFICATION. The Company shall indemnify the Executive to
the full extent permitted by law and the By-laws of the Company for all
expenses, costs, liabilities and legal fees which the Executive may incur in the
discharge of all his duties hereunder, including, without limitation, the right
to be paid in advance by the Company for his expenses in defending a civil or
criminal action, proceeding or investigation prior to the final disposition
thereof. The Executive shall be insured under the Company's Directors' and
Officers' Liability Insurance Policy as in effect from time to time.
Notwithstanding any other provision of this Agreement to the contrary, any
termination of the Executive's employment or of this Agreement shall have no
effect on the continuing operation of this Section 11.
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12. SUCCESSORS; BINDING AGREEMENT.
(a) COMPANY'S SUCCESSORS. No rights or obligations of the
Company under this Agreement may be assigned or transferred by the Company
except that such rights or obligations may be assigned or transferred pursuant
to a merger or consolidation in which the Company is not the continuing entity,
or the sale or liquidation of all or substantially all of the business and/or
assets of the Company, provided that the assignee or transferee is the successor
to all or substantially all of the business and/or assets of the Company and
such assignee or transferee assumes the liabilities, obligations and duties of
the Company, as contained in this Agreement, either contractually or as a matter
of law. The Company will require any such successor 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 had taken
place. As used in this Agreement (except in the definition of Change in
Control), "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 12 or which otherwise becomes bound
by all the terms and provisions of this Agreement or by operation of law.
(b) EXECUTIVE'S SUCCESSORS. This Agreement shall not be
assignable by the Executive. This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. Upon the Executive's death, all amounts to
which he is entitled hereunder, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
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13. NOTICE. For the purposes of this Agreement, notices, demands
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
Xxxxxx X. Xxxx
-----------------------
-----------------------
If to the Company:
Sunbeam Corporation
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: General Counsel
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.
14. MISCELLANEOUS. No provisions of this Agreement may be
modified unless such modification is agreed to in writing signed by the
Executive and an authorized officer of the Company. Any waiver or discharge must
be in writing and signed by the Executive or such an authorized officer of the
Company, as the case may be. 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. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware without regard to its conflicts of law principles.
15. WITHHOLDING. Any payments provided for in this Agreement
shall be paid net of any applicable withholding of taxes required under federal,
state or local law.
16. ARBITRATION.
(a) Except as otherwise provided herein, all
controversies, claims or disputes arising out of or related to this Agreement
shall be settled under the rules of the American Arbitration Association then
in effect in the State of Florida, as the sole and exclusive remedy of either
party, and judgment upon such award rendered by the arbitrator(s) may be entered
in any court of competent jurisdiction. The costs of the arbitration shall be
borne as determined by the arbitrators PROVIDED, HOWEVER, that if the Company's
position is not substantially upheld, as determined by the arbitrators, the
expenses of the Executive (including, without limitation, fees and expenses
payable to the AAA and the arbitrators, fees and expenses payable to witnesses,
including expert witnesses, fees and expenses payable to attorneys and other
professionals, expenses of the Executive in attending the hearings, costs in
connection with obtaining and presenting evidence and
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costs of transcription of the proceedings), as determined by the arbitrators,
shall be reimbursed to him by the Company.
(b) Notwithstanding the provisions of Section 16(a) above,
the parties agree that nothing contained herein shall preclude the Company from
bringing an action in a court of competent jurisdiction (whether prior to or
during any arbitration proceeding) seeking to specifically enforce the
provisions of Section 10 hereof by means of seeking an injunction or other
equitable relief.
17. ENTIRE AGREEMENT; COUNTERPARTS. This Agreement and the terms
of the Option Plan set forth the entire agreement of the parties hereto in
respect of the subject matter contained herein, supersede all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto; and any prior agreement of the parties hereto or thereto in
respect of the subject matter contained herein or therein, including but not
limited to that certain Employment Agreement between the Company and the
Executive dated January 1, 1995, is hereby terminated and canceled. This
Agreement may be signed in counterparts.
18. CONFLICT WITH OPTION PLAN. To the extent, if any, of any
inconsistency or conflict between the terms and provisions of this Agreement and
the Option Plan, this Agreement shall control in all matters.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on August 7,
1996 to be effective as of the Effective Date.
SUNBEAM CORPORATION
By:___________________
Name: XXXXXX X. XXXXXX
Title: CHAIRMAN & CEO
______________________
Xxxxxx X. Xxxx
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