EXHIBIT 10.4
EMPLOYMENT AGREEMENT
AGREEMENT, made and entered into as of the Effective Date by and
between Sunbeam Corporation, a Delaware corporation (together with its
successors and assigns permitted under this Agreement, the "Company"), and Xxxxx
X. Xxxxxxx (the "Executive").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Executive currently serves the Company as Executive Vice
President and Chief Financial Officer pursuant to an employment agreement dated
August 12, 1998 (the "1998 Agreement");
WHEREAS, the Company wishes that the Executive continue to serve as
Executive Vice President and Chief Financial Officer for the period through June
30, 2003 and the Executive is willing to so serve;
WHEREAS, the Company and the Executive desire to enter into an
agreement embodying the terms of such continued employment (the "Agreement");
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. DEFINITIONS.
(a) "Affiliate" of a person or other entity shall mean a person or
other entity that directly or indirectly controls, is controlled by, or is under
common control with the person or other entity specified.
(b) "Base Salary" shall mean the salary provided for in Section 4 below
or any increased salary granted to the Executive pursuant to Section 4.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Cause" shall mean:
(i) the Executive is convicted of a felony or of any crime
involving moral turpitude;
(ii) the Executive is guilty of willful gross neglect or
willful gross misconduct in carrying out his duties under this Agreement,
resulting, in either case, in material economic
harm to the Company unless the Executive acted, or failed to act, in a good
faith belief that such act or failure to act was in, or not contrary to, the
best interests of the Company.
(e) 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, but excluding a person who owns
more than 10% of the outstanding shares of the Company as of the date of this
Agreement), becomes a "beneficial owner" (as such term is used in Rule 13d-3
promulgated under that Act), of 25% or more of the Voting Stock of the Company;
(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; 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 adopts any plan of liquidation providing for
the distribution of all or substantially all of its assets;
(iv) all or substantially all of the assets or business of the
Company is 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); or
(v) the Company combines with another company and is the
surviving corporation but, immediately after the combination, the shareholders
of the Company immediately prior to the combination hold, directly or
indirectly, 50% or less of the Voting Stock of the combined company (there being
excluded from the number of shares held by such shareholders, but not from the
Voting Stock of the combined company, any shares received by Affiliates of such
other company in exchange for stock of such other company).
For purposes of the Change in Control definition, "the Company" shall
include any entity that succeeds to all or substantially all of the business of
the Company, and "Voting Stock" shall mean capital stock of any class or classes
having general voting power, in the absence of specified contingencies, to elect
the directors of a corporation.
(f) "Constructive Termination Without Cause" shall mean termination by
the Executive of his employment at his initiative within 30 days following the
occurrence of any of the following events without his consent:
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(i) a reduction in the Executive's then current Base Salary or
target bonus opportunity as a percentage of Base Salary;
(ii) the taking of any other action by the Company that would
diminish the incentive opportunities of the Executive as provided hereunder,
including eliminating an incentive plan without providing a substitute or
reducing his awards under such a plan.
(iii) the taking of any action by the Company that would
significantly diminish the aggregate value of the benefits provided to the
Executive under the Company's medical, health, accident, disability, life
insurance, thrift and retirement plans;
(iv) the removal of the Executive from any of the positions
described in Section 3 below,
(v) the failure of the Company's shareholders to approve
either any amendment required to the Company's Management Incentive Plan or the
January 3, 2000 option grant necessary in order to grant the Executive all the
benefits to which he is entitled hereunder;
(vi) a material diminution in the Executive's duties;
(vii) a change in the reporting structure so that the
Executive reports to someone other than as provided in the Agreement;
(viii) relocation of the Executive's principal place of
employment to a location other than Palm Beach County, or North Broward County,
Florida or New York City;
(ix) a material breach by the Company of any provision of the
Agreement;
(x) any purported termination of the Executive's employment
that is not effected pursuant to Section 11(b) due to Disability, Section 11(c)
for Cause or Section 11(d) without Cause;
(xi) the failure of the Company to obtain the assumption in
writing of its obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Company within 15 days after a merger,
consolidation, sale or similar transaction, provided that, in the event of a
Change in Control as provided in subclause (xii) below, the Executive shall be
entitled to give notice of a Constructive Termination even if a successor has
assumed this Agreement, or
(xii) the occurrence of a Change in Control.
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Following written notice from the Executive of any of the events described
above, the Company shall have 20 calendar days in which to cure. If the Company
fails to cure, the Executive's termination shall become effective on the 30th
calendar day following the written notice.
(g) "Disability" shall mean the Executive's inability, due to physical
or mental incapacity, to substantially perform his duties and responsibilities
under this Agreement for a period of six consecutive months as determined by a
medical doctor selected by the Company and the Executive. If the Parties cannot
agree on a medical doctor, each Party shall select a medical doctor and the two
doctors shall select a third who shall be the approved medical doctor for this
purpose.
(h) "Effective Date" shall be January 3, 2000.
(i) "Fair Market Value" per share on any given date shall mean the
average of the high and low prices of a share of Stock on such date (or if the
Stock is not traded on such date on the most recent trading day prior thereto)
on the principal securities exchange or national market system, including
without limitation the NASDAQ National Market, on which such Stock is at the
time listed, or if such Stock is not so listed, but is regularly quoted by a
recognized securities dealer, the mean between the high bid and low asked prices
for the Stock on such date (or on the most recent trading day on which the Stock
is quoted).
(j) "Pro Rata" shall mean a fraction, the numerator of which is the
number of days that the Executive was employed in the applicable performance
period (a calendar year in the case of an annual bonus and a performance cycle
in the case of an award under the Long-Term Incentive Plan) and the denominator
of which shall be the number of days in the applicable performance period.
(k) "Stock" shall mean the common stock of the Company.
(l) "Term of Employment" shall mean the period specified in Section 2
below (including any extension as provided therein).
2. TERM OF EMPLOYMENT.
The Term of Employment shall begin as of the Effective Date, and shall
extend until June 30, 2003, with automatic one-year renewals thereafter unless
either Party notifies the other at least 12 months before the scheduled
expiration date that the term is not to renew. Notwithstanding the foregoing,
the Term of Employment shall be earlier terminated if either Party terminates
the Executive's employment hereunder in accordance with the provisions of
Section 11, in which case the Term of Employment shall terminate on the date
such termination of employment is effective.
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3. POSITION, DUTIES AND RESPONSIBILITIES.
(a) The Executive shall continue to serve as the Executive Vice
President and Chief Financial Officer of the Company. The Executive, in carrying
out his duties under this Agreement, shall report to the Chief Executive Officer
of the Company. During the Term of Employment, the Executive shall devote
substantially all of his business time and attention to the business and affairs
of the Company and shall use his best efforts, skills and abilities to promote
its interests.
(b) Nothing herein shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other corporations with the
concurrence of the Board (which concurrence shall not be unreasonably withheld),
(ii) serving on the boards of a reasonable number of trade associations and/or
charitable organizations, (iii) engaging in charitable activities and community
affairs, and (iv) managing his personal investments and affairs, provided that
such activities set forth in this Section 3(b) do not conflict or materially
interfere with the effective discharge of his duties and responsibilities under
Section 3(a).
4. BASE SALARY.
The Executive shall be paid an annualized Base Salary, payable in
accordance with the regular payroll practices of the Company, of $425,000 per
year; increasing to $475,000 per year, effective July 1, 2000; increasing to
$525,000 year effective July 1, 2001; and increasing to $575,000 per year,
effective July 1, 2002. The Base Salary shall be reviewed periodically for any
further increase in the sole discretion of the Board.
5. ANNUAL INCENTIVE AWARD.
During the Term of Employment, commencing in 2000 the Executive shall
have a target bonus opportunity each year equal to 60% of Base Salary, payable
in that amount if the performance goals established for the relevant year are
met. If such performance goals are exceeded, the Executive shall receive a
larger amount of up to 120% of Base Salary and if such performance goals are not
met, the Executive shall receive a lesser amount (or nothing), as determined in
accordance with the Company's Management Incentive Plan (or any successor annual
incentive plan). The Executive shall be paid his annual incentive awards no
later than the date other senior executives of the Company are paid their annual
incentive awards and in no event later than 60 days following the last day of
the fiscal year to which the annual incentive award is being paid.
6. STOCK OPTION GRANT. As of January 3, 2000 the Company shall have
granted, subject to the approval of such grant by the Company's stockholders at
the annual stockholders' meeting held in 2000, the Executive a stock option, in
the form attached hereto as Exhibit A, to purchase 550,000 shares of Stock.
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7. EMPLOYEE BENEFIT PROGRAMS.
During the Term of Employment, the Executive shall be entitled to
participate in any employee pension and welfare benefit plans and programs made
available to the Company's senior level executives or to its employees
generally, as such plans or programs may be in effect from time to time,
including, without limitation, pension, profit sharing, savings and other
retirement plans or programs, 401(k), medical, dental, hospitalization,
short-term and long-term disability and life insurance plans, accidental death
and dismemberment protection, travel accident insurance, and any other pension
or retirement plans or programs and any other employee welfare benefit plans or
programs that may be sponsored by the Company from time to time, including any
plans that supplement the above-listed types of plans or programs, whether
funded or unfunded. The Executive's participation shall be based on, and the
calculation of all benefits shall be based on, the assumptions that the
Executive has met all service-period or other requirements for such
participation. The Executive shall be entitled to four weeks paid vacation per
year of employment, which shall accrue and otherwise be subject to the Company's
vacation policy for senior executives.
8. PERQUISITES.
The Executive shall be entitled to perquisites on the same basis as
provided to other senior level executives and, in any event, shall be entitled
to the following:
(a) Company-provided automobile (late-model top-of-the-line), including
reimbursement of expenses of operation, maintenance and insurance;
(b) Expenses of one country club; including, without limitations,
initiation fees;
(c) Residential security system;
(d) Reimbursement for reasonable financial planning, tax preparation
and estate planning fees. During the Term of Employment, the Company shall
maintain, and pay the premiums on, portable term insurance on the life of the
Executive in an amount no less than four times the Executive's Base Salary, from
time to time, the proceeds of which shall be payable to such beneficiary or
beneficiaries as the Executive specifies.
9. AIRCRAFT TRAVEL.
The Executive shall be entitled to first class air travel.
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10. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
The Executive is authorized to incur reasonable expenses in carrying
out his duties and responsibilities under this Agreement and the Company shall
promptly reimburse him for all reasonable business expenses incurred in
connection with carrying out the business of the Company, subject to
documentation in accordance with the Company's policy. The Company shall pay all
legal fees and expenses incurred by the Executive in connection with the
negotiation of the Executive's employment arrangements with the Company.
11. TERMINATION OF EMPLOYMENT.
(a) TERMINATION DUE TO DEATH. In the event that the Executive's
employment is terminated due to his death, his estate or his beneficiaries, as
the case may be, shall be entitled to the following:
(i) a lump sum payment equal to 60% of Base Salary that would
be payable for a period which is the greater of (A) 12 months or (B) the
remaining term of the Employment Agreement (without regard to early termination
thereof);
(ii) a Pro-Rata Annual Incentive Award for the year in which
the Executive's death occurs based on the target bonus for the year of
termination, payable when bonuses are paid to other officers; and
(iii) full vesting and exercisability of all outstanding
options which shall remain exercisable through the end of their originally
scheduled term.
(b) TERMINATION DUE TO DISABILITY. In the event that the Executive's
employment is terminated by either Party hereto due to the Executive's
Disability, he shall be entitled to the following:
(i) Disability benefits provided in accordance with the
long-term disability program in effect for senior executives at the Company;
provided, however, in no event shall such benefits provide the Executive less
than 60% of his then Base Salary to age 65;
(ii) Base Salary through the end of the month in which
Disability benefits commence;
(iii) a Pro-Rata Annual Incentive Award for the year in which
termination due to Disability occurs based on the target bonus for the year of
termination, payable when bonuses are paid to other officers;
(iv) full vesting and exercisability of all outstanding
options which shall remain exercisable through the end of their originally
scheduled term; and
(vi) continued participation in all medical, dental, vision
and hospitalization insurance coverage for himself, his spouse and eligible
dependents and in other employee benefit
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plans or programs in which he was participating on the date of the termination
of his employment for a period of 24 months following termination of employment
provided that if the Company's plans do not permit continuation of the
Executive's participation following his termination, the Company shall provide
the Executive with an amount which, after taxes, is sufficient for him to
purchase equivalent benefits.
In no event shall a termination of the Executive's employment for
Disability occur until the Party terminating his employment gives written notice
to the other Party in accordance with Section 22 below.
(c) TERMINATION BY THE COMPANY FOR CAUSE.
(i) A termination for Cause shall not take effect unless the
provisions of this subclause (i) are complied with. The Executive shall be given
written notice by the Board of the intention to terminate him for Cause, such
notice (A) to state in detail the particular act or acts or failure or failures
to act that constitute the grounds on which the proposed termination for Cause
is based and (B) to be given within 60 days of the Board learning of such act or
acts or failure or failures to act. In the event the proposed termination is
based on subclause (ii) of Section 1(d) above, the Executive shall have ten
calendar days after the date that such written notice has been given to the
Executive in which to cure such conduct. If he fails to cure such conduct, the
Executive shall then be entitled to a hearing before the Board, and, thereafter,
upon a determination by affirmative vote of no fewer than three-quarters of the
members of the Board that Cause exists he shall be terminated for Cause.
(ii) In the event the Company terminates the Executive's
employment for Cause:
(A) he shall be entitled to Base Salary through the
date of the termination; and
(B) all outstanding options which are not then
exercisable shall be forfeited; exercisable options shall remain exercisable
until the earlier of the ninetieth day after the date of termination or the
originally scheduled expiration date of the options.
(d) TERMINATION WITHOUT CAUSE, CONSTRUCTIVE TERMINATION WITHOUT CAUSE
OR NON-RENEWAL BY THE Company.
In the event the Executive's employment is terminated by the Company
without Cause, other than due to Disability or death, there is a Constructive
Termination without Cause or the Company gives notice of non-renewal pursuant to
Section 2 above, the Executive shall be entitled to the following benefits:
(i) Base Salary through the date of termination;
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(ii) pro-rata Annual Incentive Award for the year of
termination, award based on the target bonus for such year, payable promptly
following such termination;
(iii) a lump sum payment in an amount equal to the greater of
(A) the Executive's Base Salary for the remainder of the term (without regard to
early termination thereof) or (B) two times the Executive's Base Salary,
determined as provided in the last paragraph of this Section 11(d), payable
promptly following such termination;
(iv) a lump sum payment in an amount equal to the greater of
(A) the Executive's Base Salary for the remainder of the term (without regard to
early termination thereof), multiplied by the applicable target bonus
opportunity percentage or (B) two times the Executive's Annual Incentive Award,
based on the target bonus for the year of termination, payable promptly
following such termination;
(v) all outstanding options shall become fully vested and
exercisable and shall remain exercisable through the end of their originally
scheduled term; and
(vi) continued participation in all medical, dental, vision
and hospitalization insurance coverage for himself, his spouse and eligible
dependents and in all other employee and senior-level executive benefit plans or
programs in which he was participating on the date of the termination of his
employment for a period equal to the greater of (A) the remainder of the term or
(B) 24 months following termination of employment; provided, however, that if
the Executive becomes re-employed with another employer and is eligible to
receive medical or other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described above shall be secondary to
those provided under such other plan during such applicable period of
eligibility.
In the event the Company's plans do not permit continuation of the Executive's
participation following his termination, the Company shall provide the Executive
with an amount which, after taxes, is sufficient for him to purchase equivalent
benefits.
For purposes of Section 11(d)(iv) and (v) above, Base Salary shall be
determined by the Base Salary at the annualized rate in effect on the date of
termination of the Executive's employment (subject to the last sentence of this
paragraph) adjusted for any scheduled increase pursuant to Section 4 above. Such
adjustment shall be made as follows: the aggregate scheduled remaining salary
payments for the remaining Term of Employment (without regard to early
termination thereof) shall be divided by the remaining months of the Term of
Employment (without regard to early termination thereof) and the resulting
monthly rate shall be multiplied by 12. For purposes of the first sentence of
this paragraph, if, prior to the termination of the Executive's employment
pursuant to this Section 11(d), the Base Salary has been reduced, the Base
Salary in effect on the date of termination of the Executive's employment shall
be deemed to be the highest Base Salary in effect prior to any such reduction.
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(e) VOLUNTARY TERMINATION. A termination of employment by the
Executive on his own initiative, other than a termination due to death or
Disability or a Constructive Termination without Cause, shall have the same
consequences as provided in Section 11(c)(ii) for a termination for Cause. A
voluntary termination under this Section 11(e) shall be effective 30 calendar
days after prior written notice is received by the Company, unless the Company
elects to make it effective earlier.
(f) CONSEQUENCES OF A CHANGE IN CONTROL.
Upon a Change in Control, all amounts, entitlements or
benefits in which the Executive is not yet vested shall become fully vested
including, without limitation, all outstanding options which shall remain
exercisable through the end of their regularly scheduled term.
In the event that any payment or benefit made or provided to
or for the benefit of the Executive in connection with this Agreement, the
Executive's employment with the Company, or the termination thereof (a
"Payment") is determined to be subject to any excise tax ("Excise Tax") imposed
by Section 4999 of the Code (or any successor to such Section), the Company
shall pay to the Executive, prior to the time any Excise Tax is payable with
respect to such Payment (through withholding or otherwise), an additional amount
which, after the imposition of all income, employment, excise and other taxes,
penalties and interest thereon, is equal to the sum of (i) the Excise Tax on
such Payment plus (ii) any penalty and interest assessments associated with such
Excise Tax. The determination of whether any Payment is subject to an Excise Tax
and, if so, the amount to be paid by the Company to the Executive and the time
of payment shall be made by an independent auditor (the "Auditor") selected
jointly by the Parties and paid by the Company. Unless the Executive agrees
otherwise in writing, the Auditor shall be a nationally recognized United States
public accounting firm that has not, during the two years preceding the date of
its selection, acted in any way on behalf of the Company or any of its
Affiliates. If the Parties cannot agree on the firm to serve as the Auditor,
then the Parties shall each select one accounting firm and those two firms shall
jointly select the accounting firm to serve as the Auditor.
(g) OTHER TERMINATION BENEFITS. In the case of any of the
foregoing terminations, the Executive or his estate shall also be entitled to:
(i) the balance of any incentive awards due for performance
periods which have been completed, but which have not yet been paid (subject to
deferral of payments to the extent the Executive has elected, irrevocably, such
deferral);
(ii) any expense reimbursements due the Executive; and
(iii) other benefits, including senior level executive
benefits, if any, in accordance with applicable plans and programs of the
Company.
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(h) NO MITIGATION; NO OFFSET. In the event of any termination of
employment under this Section 11, the Executive shall be under no obligation to
seek other employment and there shall be no offset against amounts due the
Executive under this Agreement on account of any claims asserted by the Company
or any remuneration attributable to any subsequent employment that he may
obtain.
(i) NATURE OF PAYMENTS. Any amounts due under this Section 11
are in the nature of severance payments considered to be reasonable by the
Company and are not in the nature of a penalty.
12. CONFIDENTIALITY; NON-COMPETITION.
(a) The Executive agrees that he will not, at any time during the Term
of Employment or thereafter, disclose or use any proprietary or confidential
information of the Company or any subsidiary or Affiliate of the Company,
obtained during the course of his employment, except as required in the course
of such employment or with the written permission of the Company or, as
applicable, any subsidiary or Affiliate of the Company or as may be required by
law, provided that, if the Executive receives legal process with regard to
disclosure of such information, he shall promptly notify the Company and
cooperate with the Company in seeking a protective order. For this purpose,
"proprietary or confidential information" shall include "know how," trade
secrets, customer lists, pricing policies, operational methods, technical
processes, formulae, inventions, research projects or other information
regarding the financial and business affairs of the Company that have not been
disclosed to the public or within the business community (other than due to a
breach by the Executive of this Section 12).
(b) The Executive agrees that at the time of the termination of his
employment with the Company, whether at the instance of the Executive or the
Company, and regardless of the reasons therefor, he will deliver to the Company,
and not keep or deliver to anyone else, any and all notes, files, memoranda,
papers and, in general, any and all physical matter containing information,
including any and all documents significant to the conduct of the business of
the Company or any subsidiary or Affiliate of the Company which are in his
possession, except for any documents for which the Company or any subsidiary or
Affiliate of the Company has given written consent to removal at the time of the
termination of the Executive's employment and his personal rolodex, personal
files, phone book and similar items.
(c) During the Term, the Executive shall not, directly or indirectly,
on his own behalf or on behalf of any other person or entity, enter the employ
of, or render any services to, any person, firm or corporation engaged in any
business competitive with the business then being conducted by the Company or
any of its then subsidiaries or affiliates; the Executive shall not engage in
such business on the Executive's own account; and the Executive shall not become
interested in any such business, directly or indirectly, as an individual,
partner, shareholder, director, officer, principal, agent, employee, trustee,
consultant, or in any other relationship or capacity; PROVIDED, HOWEVER, that
nothing contained in this Section 12(c) shall be deemed to
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prohibit the Executive from acquiring, solely as an investment, up to five
percent (5%) of the outstanding shares of capital stock of any public
corporation. In addition, the Executive shall, at all times, be subject to the
noncompetition, confidentiality and ownership of inventions covenants required
pursuant to the Management Incentive Plan.
(d) The Executive agrees that the Company's remedies at law would be
inadequate in the event of a breach or threatened breach of this Section 12;
accordingly, the Company shall be entitled, in addition to its rights at law, to
seek an injunction and other equitable relief without the need to post a bond.
13. RESOLUTION OF DISPUTES.
Any disputes arising under or in connection with this Agreement shall
be resolved by binding arbitration, to be held in Manhattan, in accordance with
the rules and procedures of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Each Party shall bear his or its own costs of the
arbitration or litigation, except that the Company shall bear all such costs if
the Executive prevails in such arbitration or litigation on any material issue.
14. INDEMNIFICATION.
(a) The Company agrees that if the Executive is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether or not the basis of such Proceeding is the Executive's alleged action in
an official capacity while serving as a director, officer, member, employee or
agent, the Executive shall be indemnified and held harmless by the Company to
the fullest extent legally permitted or authorized by the Company's certificate
of incorporation or bylaws or resolutions of the Company's Board of Directors
or, if greater, by the laws of the State of Delaware, against all cost, expense,
liability and loss (including, without limitation, attorney's fees, judgments,
fines, ERISA excise taxes or other liabilities or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by the Executive in
connection therewith, and such indemnification shall continue as to the
Executive even if he has ceased to be a director, member, employee or agent of
the Company or other entity and shall inure to the benefit of the Executive's
heirs, executors and administrators. The Company shall advance to the Executive
all reasonable costs and expenses incurred by him in connection with a
Proceeding within 20 calendar days after receipt by the Company of a written
request for such advance. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses; provided that the amount of such obligation to repay shall be limited
to the after-tax amount of any such advance except to the
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extent the Executive is able to offset such taxes incurred on the advance by the
tax benefit, if any, attributable to a deduction for the repayment.
(b) Neither the failure of the Company (including its board of
directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any proceeding concerning payment of
amounts claimed by the Executive under Section 14(a) above that indemnification
of the Executive is proper because he has met the applicable standard of
conduct, nor a determination by the Company (including its board of directors,
independent legal counsel or stockholders) that the Executive has not met such
applicable standard of conduct, shall create a presumption in any judicial
proceeding that the Executive has not met the applicable standard of conduct.
(c) The Company agrees to continue and maintain a directors' and
officers' liability insurance policy covering the Executive in an amount of no
less than $50 million.
15. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Executive)
and assigns. Rights or obligations of the Company under this Agreement may be
assigned or transferred by the Company 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 assets of the Company, provided that the
assignee or transferee is the successor to all or substantially all of the
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 further agrees that, in the
event of a sale of assets or liquidation as described in the preceding sentence,
it shall take whatever action it reasonably can in order to cause such assignee
or transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder. No rights or obligations of the Executive under this
Agreement may be assigned or transferred by the Executive other than his rights
to compensation and benefits, which may be transferred only by will or operation
of law.
16. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and supersedes all prior
agreements, including without limitation the 1998 Agreement, understandings,
discussions, negotiations and undertakings, whether written or oral, between the
Parties with respect thereto.
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17. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Executive and an authorized officer of
the Company. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Executive or an authorized officer of the Company, as the case may
be.
18. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law so as to
achieve the purposes of this Agreement.
19. SURVIVORSHIP.
Except as otherwise expressly set forth in this Agreement, the
respective rights and obligations of the Parties hereunder shall survive any
termination of the Executive's employment. This Agreement itself (as
distinguished from the Executive's employment) may not be terminated by either
Party without the written consent of the other Party. Upon the expiration of the
term of the Agreement, the respective rights and obligations of the Parties
shall survive such expiration to the extent necessary to carry out the
intentions of the Parties as embodied in the rights (such as vested rights) and
obligations of the Parties under this Agreement.
20. REFERENCES.
In the event of the Executive's death or a judicial determination of
his incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
21. GOVERNING LAW.
This Agreement shall be governed in accordance with the laws of
Delaware without reference to principles of conflict of laws.
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22. NOTICES.
All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed given when (a) delivered personally, (b)
delivered by certified or registered mail, postage prepaid, return receipt
requested or (c) delivered by overnight courier (provided that a written
acknowledgment of receipt is obtained by the overnight courier) to the Party
concerned at the address indicated below or to such changed address as such
Party may subsequently give such notice of:
If to the Company: Sunbeam Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
If to the Executive: Xx. Xxxxx X. Xxxxxxx
Boca Raton, FL
23. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the
meaning or construction of any provision of this Agreement.
24. COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
Sunbeam Corporation
By:
----------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
----------------------------------
Xxxxx X. Xxxxxxx
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