EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 12th day of September, 1996, by
and between Rayovac Corporation, a Wisconsin corporation (the "Company"), and
David A. Jones (the "Executive").
WHEREAS, the Company desires the benefit of the experience, supervision
and services of the Executive and desires to employ the Executive upon the terms
and conditions set forth herein; and
WHEREAS, the Executive is willing and able to accept such employment on
such terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Employment Duties and Acceptance. The Company hereby employs the Executive,
and the Executive agrees to serve and accept employment, as the Chairman
of the Board of Directors, President and Chief Executive Officer of the
Company, reporting directly to the Board of Directors of the Company (the
"Board"). In connection therewith, as Chairman of the Board, President and
Chief Executive Officer, the Executive shall oversee and direct the opera-
tions of the Company and perform such other duties consistent with the
responsibilities of Chairman of the Board, President and Chief Executive
Officer, all subject to the direction and control of the Board. During the
Term (as defined below), the Executive shall devote all of his working time
to such employment and appointment, shall devote his best efforts to
advance the interests of the Company and shall not engage in any other
business activities, as an employee, director, consultant or in any other
capacity, whether or not he receives any compensation therefor, without the
prior written consent of the Board; provided, however, that the Executive
may continue his present participation on the Board of Directors of Health
O Meter, Inc. so long as none of such companies nor any of its affil-
iates is a competitor of the Company. Any additional business activities
for other companies will require the consent of the Board.
2. Term of Employment. Subject to Section 4 hereof, the Executive's employment
and appointment hereunder shall be for a term commencing on the date hereof
and expiring on September 30, 1999 (the "Term"). Upon expiration of the
Term, this Agreement shall automatically extend for successive periods of
one (1) year, unless the Executive or the Company shall give notice to the
other at least ninety (90) days prior to the end of the Term (or any annual
extension thereof) indicating that it does not intend to renew the
Agreement.
3. Compensation. In consideration of the performance by the Executive of his
duties hereunder, the Company shall pay or provide to the Executive the
following compensation which the Executive agrees to accept in full
satisfaction for his services, it being understood that necessary
withholding taxes, FICA contributions and the like shall be deducted from
such compensation:
(a) Base Salary. The Executive shall receive a base salary equal to Four
Hundred Thousand Dollars ($400,000) per annum during the Term ("Base
Salary"), which Base Salary shall be paid in equal monthly
installments each year, to be paid monthly in arrears. The Board will
review from time to time the Base Salary payable to the Executive
hereunder and may, in its discretion, increase the Executive's Base
Salary. Any such increased Base Salary shall be and become the "Base
Salary" for purposes of this Agreement.
(b) Bonus. The Executive shall receive a bonus for each fiscal year ending
during the Term, payable annually in arrears, which shall be based,
as set forth on Schedule A hereto, on the Company achieving certain
annual performance goals established by the Board from time to time
(the "Bonus"). The Board may, in its discretion, increase the annual
Bonus. Any such increased annual Bonus shall be and become the "Bonus"
2 2
for such fiscal year for purposes of this Agreement.
(c) Additional Salary. The Executive shall receive $161,000, payable at
the time the first monthly installment of Base Salary is payable
hereunder. In addition, (i) so long as the promissory note (the
"Note") of the Executive attached hereto as Exhibit A is not due and
payable in full, the Executive shall receive additional compensation
at an initial rate of Thirty-five Thousand Dollars ($35,000) per
annum during the Term, payable (A) at the time the Bonus is payable
hereunder, (B) if no Bonus is payable hereunder, at the time the Board
determines that no Bonus is payable hereunder or (C) if payment of
principal of and interest on the Note is accelerated, at the time of
the Executive's payment in full of the Note; provided, however, that
to the extent the Note is prepaid, the rate set forth above shall be
decreased by the amount by which interest on the Note has been
reduced as a result of such prepayment, and (ii) the Executive shall
also receive an additional $18,500 per annum during the Term, payable
at the time the first monthly installment of Base Salary is payable
hereunder and on each anniversary thereafter (all such payments set
forth in clauses (i) and (ii) above are referred to herein as the
"Additional Salary").
(d) Insurance Coverages and Pension Plans. The Executive shall be entitled
to such insurance, pension and all other benefits as are generally
made available by the Company to its executive officers from time to
time.
(e) Stock Options. Pursuant to the Company's 1996 Stock Option Plan
substantially in the form attached hereto as Exhibit B, the Company
shall grant to the Executive the following options to purchase shares
of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), as follows:
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(i) Time Vesting. An option (the "Time Option") to purchase 455,788
shares of Common Stock at an exercise price of $4.39 per share,
which option shall vest 20% on September 30, 1997 and annually
thereafter through September 30, 2001. The Time Option shall be
evidenced by a Stock Option Agreement substantially in the form
attached hereto as Exhibit C. All options granted to
the Executive reflect the 5 for 1 stock split of the Company's
Common Stock effected on the date hereof.
(ii) Performance Vesting. An option (the "Performance Option") to
purchase 455,789 shares of Common Stock at an exercise price of
$4.39 per share, which option shall vest based on the Company's
ability to achieve certain financial objectives to be set by the
Board. In any event, the Performance Option shall be 100% vested
if the Executive remains employed by the Company after September
30, 2007. The Performance Option shall be evidenced by a Stock
Option Agreement substantially in the form attached hereto as
Exhibit D
(f) Vacation. The Executive shall be entitled to four (4) weeks
vacation each year.
(g) Housing and other Expenses. The Executive
shall be entitled to reimbursement of
all reasonable and documented expenses actually incurred or
paid by the Executive in the performance of the Executive's
duties under this Agreement, upon presentation of expense state-
ments, vouchers or other supporting information in accordance
with Company policy. In addition, the Company will reimburse
the Executive for expenses associated with moving to the Madison
area, reasonable travel to and from Atlanta and reasonable rent
or fees associated with an apartment or condominium in the
Madison area. All expense reimbursements and other perquisites of
the Executive are reviewable periodically by the Compensation
Committee of the Board, if there be one, or the Board.
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(h) Automobile. The Company shall provide the Executive with the use
of a leased automobile suitable for a chief executive officer of
a company similar to the Company.
(i) D&O Insurance. The Executive shall be entitled to indemnification
from the Company to the maximum extent provided by law, but not
for any action, suit, arbitration or other proceeding (or portion
thereof) initiated by the Executive, unless authorized or
ratified by the Board. Such indemnification shall be covered by
the terms of the Company's policy of insurance for directors
and officers in effect from time to time (the "D&O Insurance").
Copies of the Company's charter, by-laws and D&O Insurance will
be made available to the Executive upon request.
(j) Legal Fees. The Company shall pay the Executive's actual and
reasonable legal fees incurred in connection with the preparation
of this Agreement.
4. Termination.
(a) Termination by the Company with Cause. The Company shall have the
right at any time to terminate the Executive's employment hereunder
without prior notice upon the occurrence of any of the following (any
such termination being referred to as a termination for "Cause"):
(i) the commission by the Executive of any deliberate and
premeditated act taken by the Executive in bad faith against the
interests of the Company;
(ii) the Executive has been convicted of, or pleads nolo contendere
with respect to, any felony, or of any lesser crime or offense
having as its predicate element fraud, dishonesty or
misappropriation of the property of the Company;
(iii) the habitual drug addiction or intoxication of the Executive
which negatively
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impacts his job performance or the Executive's failure of the
drug test described at Section 9.6 hereof;
(iv) the willful failure or refusal of the Executive to perform his
duties as set forth herein or the willful failure or refusal to
follow the direction of the Board, provided such failure or
refusal continues after thirty (30) days of the receipt of notice
in writing from the Board of such failure or refusal, which
notice refers to this Section 4(a) and indicates the Company's
intention to terminate the Executive's employment hereunder if
such failure or refusal is not remedied within such thirty (30)
day period; or
(v) the Executive breaches any of the terms of this Agreement or any
other agreement between the Executive and the Company which
breach is not cured within thirty (30) days subsequent to notice
from the Company to the Executive of such breach, which notice
refers to this Section 4(a) and indicates the Company's intention
to terminate the Executive's employment hereunder if such breach
is not cured within such thirty (30) day period.
If the definition of termination for "Cause" set forth above conflicts
with such definition in the Stock Option Agreements attached hereto as
Exhibits C and D or any agreements referred to therein, the definition
set forth herein shall control.
(b) Termination by Company for Death or Disability. The Company shall have
the right at any time to terminate the Executive's employment
hereunder without prior notice upon the Executive's inability to
perform his duties hereunder by reason of any mental, physical or
other disability for a period of at least six (6) consecutive
months (for purposes hereof, "disability" has the same meaning as in
the Company's
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disability policy). The Company's obligations hereunder shall, subject
to the provisions of Section 5(b), also terminate upon the death of
the Executive.
(c) Termination by Company without Cause. The Company shall have the right
at any time to terminate the Executive's employment for any other
reason without Cause upon sixty (60) days prior written notice to the
Executive.
(d) Voluntary Termination by Executive. The Executive shall be entitled
to terminate his employment and appointment hereunder upon sixty
(60) days prior written notice to the Company. Any such termination
shall be treated as a termination by the Company for "Cause" under
Section 5, unless notice of such termination was given within sixty
(60) days after a Sale (as such term is defined in the Stock Option
Agreements attached hereto as Exhibits C and D), in which case such
termination shall be treated in accordance with Section 5(d) hereof.
(e) Constructive Termination by the Executive. At any time on or after the
initial registration of an equity security of the Company under the
Securities Act of 1933, as amended, the Executive shall be entitled
to terminate his employment and appointment hereunder, without prior
notice, upon the occurrence of a Constructive Termination. Any such
termination shall be treated as a termination by the Company without
Cause. For this purpose, a "Constructive Termination" shall mean:
(i) a reduction in Base Salary or Additional Salary (other than as
permitted hereby);
(ii) a reduction in annual Bonus opportunity;
(iii) a change in location of office of more than seventy-five (75)
miles from Madison, Wisconsin;
(iv) unless with the express written consent of the Executive,
(a) the assignment to
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the Executive of any duties inconsistent in any substantial respect
with the Executive's position, authority or responsibilities as
contemplated by Section 1 of this Agreement or (b) any other
substantial change in such position, including titles, authority or
responsibilities from those contemplated by Section 1 of the
Agreement; or
(v) any material reduction in any of the benefits described in
Section 3(f), (g), (h) or (i) hereof.
For purposes of the Stock Option Agreements attached hereto as
Exhibits C and D, Constructive Termination shall be treated as a
termination of employment by the Company without "Cause."
(f) Notice of Termination. Any termination by the Company for Cause
or by the Executive for Constructive Termination shall be
communicated by Notice of Termination to the other party hereto
given in accordance with Section 8. For purposes of this
Agreement, a "Notice of Termination" means a written notice
given prior to the termination which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment
under the provision so indicated and (iii) if the termination
date is other than the date of receipt of such notice, specifies
the termination date of this Agreement (which date shall be not
more than fifteen (15) days after the giving of such notice). The
failure by any party to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Cause
or Constructive Termination shall not waive any right of such
party hereunder or preclude such party from asserting such fact
or circumstance in enforcing its rights hereunder.
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5. Effect of Termination of Employment.
(a) With Cause. If the Executive's employment is terminated with Cause,
the Executive's salary and other benefits specified in Section 3 shall
cease at the time of such termination, and the Executive shall not be
entitled to any compensation specified in Section 3 which was not
required to be paid prior to such termination; provided, however, that
the Executive shall be entitled to continue to participate in the
Company's medical benefit plans to the extent required by law.
(b) Death or Disability. If the Executive's employment is terminated by
the death or disability of the Executive (pursuant to Section 4(b)),
the Executive's compensation provided in Section 3 shall be paid to
the Executive or, in the event of the death of the Executive, the
Executive's estate, as follows:
(i) the Executive's Base Salary specified in Section 3(a) shall
continue to be paid in monthly installments until the first to
occur of (i) twelve (12) months following such termination or
(ii) such time as the Executive or the Executive's estate
breaches the provisions of Sections 6 or 7 of this Agreement;
(ii) a pro rata portion (based on days worked and percentage of
achievement of annual performance goals) of the annual Bonus
payable to the Executive, if any, specified in Section 3(b) shall
be paid, unless the Board determines to pay a greater amount in
its sole discretion;
(iii) the Executive's Additional Salary (or, for any partial year, the
pro rata portion thereof) specified in Section 3(c) shall
continue to be paid until the first to occur of (i) the remaining
period of the Term or (ii) such time as the Executive or the
Executive's estate
9
breaches the provisions of Sections 6 or 7 of this Agreement;
(iv) If the Executive's employment is terminated as a result of
disability, the Executive's additional benefits specified in
Section 3(d) shall continue to be available to the Executive
until the first to occur of (i) the remaining period of the
Term (or twelve (12) months following such termination, if
greater) or (ii) such time as the Executive breaches the
provisions of Sections 6 or 7 of this Agreement; and
(v) the Executive's accrued vacation (determined in accordance with
Company policy) at the time of termination shall be paid as soon
as reasonably practicable.
(c) Without Cause. If the Executive's employment is terminated by the
Company without Cause (pursuant to Section 4(c) or 4(e)), the
Executive's compensation provided in Section 3 shall be paid as
follows:
(i) the Executive's Base Salary specified in Section 3(a) shall
continue to be paid in monthly installments until the first to
occur of (i) the remaining period of the Term (or twelve (12)
months following such termination, if greater) or (ii) such
time as the Executive breaches the provisions of Sections 6 or 7
of this Agreement;
(ii) the Executive's annual Bonus shall continue to be paid in
accordance with this Section 5(c) at the times set forth in
Section 3(b) until the first to occur of (i) the remaining period
of the Term or (ii) such time as the Executive breaches the
provisions of Sections 6 or 7 of this Agreement. The annual Bonus
payable pursuant to this Section 5(c) shall equal the amount of
the annual Bonus (if any) previously paid or required to be
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paid pursuant to this Agreement for the full fiscal year
immediately prior to the Executive's termination of employment.
For purposes of this calculation, if termination occurs at any
time during the fiscal year ending September 30, 1997, the annual
Bonus shall be $200,000;
(iii) the Executive's Additional Salary (or, for any partial year, the
pro rata portion thereof) specified in Section 3(c) shall
continue to be paid until the first to occur of (i) the remaining
period of the Term (or twelve (12) months following such
termination, if longer) or (ii) such time as the Executive
breaches the provisions of Sections 6 or 7 of this Agreement; and
(iv) the Executive's additional benefits specified in Section 3(d)
shall continue to be available to the Executive until the first
to occur of (i) twelve (12) months following such termination or
(ii) such time as the Executive breaches the provisions of
Sections 6 or 7 of this Agreement.
(d) Following Sale. If the Executive elects to terminate his employment
within sixty (60) days following a Sale in accordance with Section
4(d), such termination by the Executive shall be treated as a
termination by the Company without Cause, and the Executive shall be
entitled to the compensation provided in Section 5(c), except that
in no event shall Executive receive less than twelve (12) months Base
Salary and annual Bonus following the expiration of the Post-Term
Period (as defined below). Notwithstanding the foregoing, the
Company may require that the Executive continue to remain in the
employ of the Company for up to a maximum of six (6) months
following the Sale (the "Post-Term Period"). The Company shall place
the maximum cash payments payable pursuant to Section 5(c) in escrow
with a commercial bank
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or trust company mutually acceptable to the Company and the Executive
as soon as practicable following the Sale. For the Post-Term Period,
the Company shall make the cash payments that would otherwise be
required pursuant to Section 3 (all such cash payments to be deducted
from the amount placed in escrow). At the expiration of the Post-Term
Period, the Executive shall receive all cash amounts due the Executive
from the remaining amount held in escrow ratably monthly over the
Non-Competition Period (as defined below), with the balance (if any)
returned to the Company. If the Company does not require that the
Executive remain in the employ of the Company, the Company shall pay
the Executive all cash amounts payable pursuant to Section 5(c)
ratably monthly over the Non-Competition Period (all such cash
payments to be deducted from the amount placed in escrow) with the
balance (if any) returned to the Company.
Notwithstanding the foregoing, although the Executive shall not be required to
mitigate the amount of any payment provided for herein by seeking other
employment or otherwise, if the Executive does obtain other employment, the
amount of each dollar ($1.00) of compensation received from such other
employment source during the period that the Company is required to make
payments hereunder shall reduce by fifty cents ($.50) the amount otherwise
payable by the Company under Section 5(c)(i) and (ii).
6. Agreement Not to Compete.
(a) The Executive agrees that during the Non-Competition Period (as
defined below), he will not, directly or indirectly, in any capacity,
either separately, jointly or in association with others, as an
officer, director, consultant, agent, employee, owner, principal,
partner or stockholder of any business, or in any other capacity,
engage or have a financial interest in any business which is involved
in the design, manufacturing, marketing or sale of batteries or
battery operated lighting devices (excepting only the ownership of not
more than
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5% of the outstanding securities of any class listed on an exchange or
the Nasdaq Stock Market). The "Non-Competition Period" is (a) the
longer of the Executive's employment hereunder or time period which he
serves as a director of the Company plus (b) a period of one (1) year
thereafter.
(b) Without limiting the generality of clause (a) above, the Executive
further agrees that during the Non-Competition Period, he will not,
directly or indirectly, in any capacity, either separately, jointly
or in association with others, solicit or otherwise contact any of the
Company's customers or prospects, as shown by the Company's records,
that were customers or prospects of the Company at any time during the
Non-Competition Period if such solicitation or contact is for the
general purpose of selling products that satisfy the same general
needs as any products that the Company had available for sale to its
customers or prospects during the Non-Competition Period.
(c) The Executive agrees that during the Non-Competition Period, he
shall not, other than in connection with employment for the Company,
solicit the employment or services of any employee of Company who is
or was an employee of Company at any time during the Non-Competition
Period. During the Non-Competition Period, the Executive shall not
hire any employee of Company for any other business.
(d) If a court determines that the foregoing restrictions are too broad
or otherwise unreasonable under applicable law, including with re-
spect to time or space, the court is hereby requested and authorized
by the parties hereto to revise the foregoing restrictions to include
the maximum restrictions allowed under the applicable law.
(e) For purposes of this Section 6 and Section 7, the "Company" refers to
the Company and any incorporated or unincorporated affiliates of the
Company.
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7. Secret Processes and Confidential Information.
(a) The Executive agrees to hold in strict confidence and, except as the
Company may authorize or direct, not disclose to any person or use
(except in the performance of his services hereunder) any confidential
information or materials received by the Executive from the Company
and any confidential information or materials of other parties
received by the Executive in connection with the performance of his
duties hereunder. For purposes of this Section 7(a), confidential
information or materials shall include existing and potential cus-
tomer information, existing and potential supplier information,
product information, design and construction information, pricing and
profitability information, financial information, sales and
marketing strategies and techniques and business ideas or practices.
The restriction on the Executive's use or disclosure of the
confidential information or materials shall remain in force until such
information is of general knowledge in the industry through no fault
of the Executive or any agent of the Executive. The Executive also
agrees to return to the Company promptly upon its request any Company
information or materials in the Executive's possession or under the
Executive's control.
(b) The Executive will promptly disclose to the Company and to no other
person, firm or entity all inventions, discoveries, improvements,
trade secrets, formulas, techniques, processes, know-how and similar
matters, whether or not patentable and whether or not reduced to prac-
tice, which are conceived or learned by the Executive during the
period of the Executive's employment with the Company, either alone or
with others, which relate to or result from the actual or anticipated
business or research of the Company or which result, to any extent,
from the Executive's use of the Company's premises or property
(collectively called the "Inventions"). The Executive acknowledges and
agrees that all the Inventions shall be the
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sole property of the Company, and the Executive hereby assigns to the
Company all of the Executive's rights and interests in and to all of
the Inventions, it being acknowledged and agreed by the Executive that
all the Inventions are works made for hire. The Company shall be the
sole owner of all domestic and foreign rights and interests in the
Inventions. The Executive agrees to assist the Company at the
Company's expense to obtain and from time to time enforce patents and
copyrights on the Inventions.
(c) Upon the request of, and, in any event, upon termination of the
Executive's employment with the Company, the Executive shall promptly
deliver to the Company all documents, data, records, notes,
drawings, manuals and all other to tangible information in whatever
form which pertains to the Company, and the Executive will not retain
any such information or any reproduction or excerpt thereof.
8. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) upon confirmation of receipt when such notice or other
communication is sent by facsimile or telex, (c) one day after delivery to
an overnight delivery courier, or (d) on the fifth day following the date
of deposit in the United States mail if sent first class, postage prepaid,
by registered or certified mail. The addresses for such notices shall be as
follows:
(a) For notices and communications to the Company:
Rayovac Corporation
601 Rayovac Drive
Madison, WI 53711
Facsimile: (608) 278-6666
Attention: Board of Directors
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with a copy to:
Thomas H. Lee Company
75 State Street
Boston, MA 02109
Facsimile: (617) 227-3514
Attention: Warren C. Smith, Jr.
and a copy to:
Skadden, Arps, Slate,
Meagher & Flom
One Beacon Street,
Boston, MA 02108
Facsimile: (617) 573-4822
Attention: Louis A. Goodman, Esq.
(b) For notices and communications to the Executive:
David A. Jones
2910 Coles Way
Atlanta, GA 30350
Facsimile: (770) 671-0536
with a copy to:
Sutherland, Asbill & Brennan
999 Peachtree Street, N.E.
Atlanta, GA 30309
Facsimile: (404) 853-8806
Attention: Mark D. Kaufman, Esq.
Any party hereto may, by notice to the other, change its address for receipt of
notices hereunder.
9. General.
9.1 Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Wisconsin, without reference to its
conflicts of law principles.
9.2 Amendment; Waiver. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms hereof may be waived,
only by a written instrument executed by all of the parties hereto
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or, in the case of a waiver, by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No waiver by
any party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
9.3 Successors and Assigns. This Agreement shall be binding upon the
Executive, without regard to the duration of his employment by the Company or
reasons for the cessation of such employment, and inure to the benefit of his
administrators, executors, heirs and assigns, although the obligations of the
Executive are personal and may be performed only by him. This Agreement shall
also be binding upon and inure to the benefit of the Company and its
subsidiaries, successors and assigns, including any corporation with which or
into which the Company or its successors may be merged or which may succeed to
their assets or business.
9.4 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original but which together shall constitute
one and the same instrument.
9.5 Attorneys' Fees. In the event that any action is brought to enforce
any of the provisions of this Agreement, or to obtain money damages for the
breach thereof, and such action results in the award of a judgment for money
damages or in the granting of any injunction in favor of one of the parties to
this Agreement, all expenses, including reasonable attorneys' fees, shall be
paid by the non-prevailing party.
9.6 Drug Test. The Executive shall submit to a drug test at the
commencement of his employment hereunder, and failure of such drug test shall
constitute Cause.
9.7 Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation during his
employment hereunder in any benefit, bonus, incentive or other plan or
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program provided by the Company or any of its affiliates and for which the
Executive may qualify; provided, however, the Executive acknowledges that he
shall not participate in any stock option programs made available to the
employees of the Company during 1997 except to the extent expressly referred to
herein. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company or any affiliated
company at or subsequent to the date of the Executive's termination of
employment with the Company shall, subject to the terms hereof or any other
agreement entered into by the Company and the Executive on or subsequent to the
date hereof, by payable in accordance with such plan or program.
9.8 Mitigation. In no event shall the Executive be obligated to seek
other employment by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement. In the event that the Executive
shall give a Notice of Termination for Constructive Termination and it shall
thereafter be determined that Constructive Termination did not take place, the
employment of the Executive shall, unless the Corporation and the Executive
shall otherwise mutually agree, be deemed to have terminated, at the date of
giving such purported Notice of Termination, and the Executive shall be entitled
to receive only those payments and benefits which he would have been entitled to
receive at such date had he terminated his employment voluntarily at such date
under Section 4(d) of this Agreement.
9.9 Equitable Relief. The Executive expressly agrees that breach of any
provision of Sections 6 or 7 of this Agreement would result in irreparable
injuries to the Company, that the remedy at law for any such breach will be
inadequate and that upon breach of such provisions, the Company, in addition to
all other available remedies, shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction without the necessity
of proving the actual damage to the Company.
9.10 Entire Agreement. This Agreement and the exhibits and schedules
hereto constitute the entire understanding of the parties hereto with respect to
the subject matter hereof and supersede all prior negotiations, discussions,
writings and agreements between them.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
RAYOVAC CORPORATION
By /s/ Warren C. Smith, Jr.
------------------------------
Name: Warren C. Smith, Jr.
Title: Director
EXECUTIVE:
/s/ David A. Jones
------------------------------
David A. Jones
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SCHEDULE A
Executive Bonus Schedule
==============================================================================
Bonus Available
Percentage of as Percentage
Plan Achieved of Base Salary
- - -------------------------------------------------------------------------------
137.5% 100%
- - -------------------------------------------------------------------------------
130 90
- - -------------------------------------------------------------------------------
122.5 80
- - -------------------------------------------------------------------------------
115 70
- - -------------------------------------------------------------------------------
107.5 60
- - -------------------------------------------------------------------------------
100 50
- - -------------------------------------------------------------------------------
90 25
- - -------------------------------------------------------------------------------
80 0
===============================================================================
Any level of Company performance which falls between two specific points
set forth above under "Percentage of Plan Achieved" shall entitle the Executive
to receive a percentage of Base Salary determined on a straight line basis
between such two points. Such amount shall be calculated as follows:
[(A-B) x .1] x (C-D) + D
Where:
A = The actual Percentage of Plan Achieved.
B = The Percentage of Plan Achieved set forth above which is less than
and closest to actual results.
C = The Bonus Available as Percentage of Base Salary set forth above
which is greater than and closest to the percentage that would apply
based on actual results.
D = The Bonus Available as Percentage of Base Salary set forth above
which is less than and closest to the percentage that would apply based
on actual results.
Notwithstanding the foregoing, the bonus payable to the Executive for
the year ending June 30, 1997 shall not be less than $200,000.