Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENTAGREEMENT ("Agreement"), dated as of December 16, 2002, is
between ________________________ (the "Executive") and ROYAL APPLIANCE MFG. CO.,
an Ohio corporation ("Royal").
WHEREAS, _________is currently employed by the Company in the capacity of
________________________, and the Executive is one of the key executives of the
Company;
WHEREAS, the Executive and the Company are parties to that certain Amended
and Restated Severance and Employment Agreement effective as of
________________________ (the "Severance and Employment Agreement");
WHEREAS, Royal intends to enter into an agreement and plan of merger (the
"Merger Agreement"), with TechTronic Industries Company Limited, a Hong Kong
limited liability company ("TTI"), pursuant to which TTI will acquire all of the
issued and outstanding common shares of Royal;
WHEREAS, Royal desires to continue to employ the Executive following the
consummation of the transactions contemplated by the Merger Agreement (such
transactions shall collectively be referred to herein as the "Merger");
WHEREAS, Royal and the Executive desire to terminate the Severance and
Employment Agreement effective with the Merger and to enter into a new
employment agreement in order to reflect their agreement as to the terms of the
Executive's continuing employment following the Merger.
NOW THEREFORE, in consideration of the premises and mutual covenants set
forth herein and for other good and valuable consideration, the parties agree
that, immediately prior to the Merger, the Severance and Employment Agreement
shall be terminated and shall be superseded by the following:
1. Definition of Certain Terms. For the purposes of this Agreement, the
terms listed below shall be defined as follows:
"Affiliate" shall mean any corporation or other business entity that
directly or indirectly is controlled by the Company and any joint venture,
partnership or other legal entity in which the Company has a significant
ownership interest.
"Board" shall mean the Company's Board of Directors.
"Cause" shall have the meaning set forth in Section 7.C.
"Company" shall mean Royal and its successors and assigns.
"Change in Control" shall mean a change in control of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A or Item 1 of Form 8-K (or any similar item or successor schedule,
form, or report) promulgated under the Securities Exchange Act of 1934 as
amended ("Exchange Act"); provided that, without limitation, such a change in
control shall be deemed to have occurred if and at such times as (i) any
"person" (as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) becomes the beneficial owner, directly or indirectly, of securities of the
Company representing 30% or more of the combined voting power of the Company's
then outstanding securities, or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board cease for
any reason to constitute at least a majority (i.e., more than one-half) thereof
unless the election, or the nomination for election by the Company's
shareholders, of each new director during such two-year period was approved by
an affirmative vote of at least two-thirds of the directors then still in office
who were directors at the beginning of said two-year period. In addition, a
change of control shall be deemed to have occurred if there is (a) the sale,
lease or other transfer in one or more transactions not in the ordinary course
of business of a total of seventy percent (70%) or more of the Company's assets,
or (b) any merger or consolidation between the Company and another corporation
or other legal entity immediately after which the Company's stockholders
immediately prior to the transaction hold, directly or indirectly, less than
fifty percent (50%) of the combined voting power of the Company or its
successor.
"Disability" shall mean the Executive's inability to perform all of
his duties for an aggregate of 90 days in any 12 consecutive month period due to
a physical or mental incapacity based upon evidence of a licensed physician who
has been mutually agreed to by the Executive (or his primary care giver if the
Executive is physically unable to agree) and Royal.
"Good Reason" shall have the meaning set forth in Section 7.C.
"Noncompete Period" shall have the meaning set forth in Section 8.
"Term" shall have the meaning set forth in Section 2.
2. Term of Employment.
A. The initial term of this Agreement shall commence on the date on
which the Merger is consummated (the "Closing Date") and shall expire on the
first anniversary thereof ("Term"); provided, however, that the Term shall be
automatically extended for successive one-year periods, unless not later than 60
days prior to the end of the initial term or any automatic extension thereof,
the Company or the Executive shall have given the other party written notice to
the contrary. If the Company gives notice of its intention not to renew this
Agreement, the Executive will be entitled to the severance benefits set forth in
Section 7.A hereof. In the event that the Merger Agreement is terminated, this
Agreement shall be null and void.
B. The Severance and Employment Agreement shall terminate
immediately prior to the consummation of the Merger. All payments received by
the Executive on or after the
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Closing Date, including without limitation the payments described in Section 4
of this Agreement, and all amounts paid to the Executive in respect of
cancellation of outstanding options in connection with the Merger, shall be
governed by the terms of this Agreement and the Merger Agreement.
3. Position.
A. During the Term, the Executive will be employed in the capacity
of _____________________________________. The Executive will devote
substantially all his business time to the performance of his duties hereunder,
will engage in no other business activities without permission of the Board and
will perform his duties hereunder to the best of his abilities.
B. In his capacity set forth in Section 3.A, the Executive shall
have the executive authority, responsibilities and duties typically held and
executed by an officer of a nationally recognized manufacturing and sales
corporation having such title and position.
C. Principal Office. The Executive's principal office and normal
place of work shall be at the Company's principal executive offices in
Glenwillow, Ohio.
4. Payments Upon Closing of Merger. In connection with the consummation of
the Merger, the Company shall, on the Closing Date, make a single sum cash
payment to the Executive in the amount of ________________________.
5. Compensation. During the Term, the Executive shall be entitled to the
following annual compensation from the Company:
A. Salary. The Company shall pay the Executive an annual base salary
("Base Salary") of ________________________ Dollars ($__________) payable in 24
equal semi-monthly installments. State, local and federal income tax
withholdings and other normal employee deductions will be deducted from the
gross salary prior to payment to the Executive. The Executive's Base Salary
shall be reviewed annually by the Company and increases, if any, will be made at
the discretion of the Company. The Executive's Base Salary may not be reduced
without his consent.
B. 2002 MIP Cash Bonus Program. The Executive may earn a cash bonus
for the fiscal year 2002 pursuant to the Company's annual management incentive
plan ("MIP"). The MIP payment to the Executive will be calculated as a
percentage of the Executive's annual Base Salary, the percentage based upon the
Company's actual performance compared to the various targeted levels set forth
by the Board at the beginning of fiscal year 2002. The annual MIP payment will
be paid to the Executive as soon as reasonably practicable following fiscal year
2002, but in any event not later than April 1st. If the MIP shall terminate
prior to the end of fiscal year 2002, the Executive shall be entitled to a pro
rata MIP payment (based on the period of time served during the year in which
the MIP was in effect) which shall be paid to the Executive as soon as
reasonably practicable, but in any event not later than April 1st. In the event
that the Company fails to implement the incentive compensation programs as
described in
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Section 5.C and/or Section 5.D, the MIP shall be deemed to have been in effect
for any such period(s), and the Executive shall be entitled to a cash bonus
payment thereunder with respect to such period(s) consistent with the Company's
historical practice.
C. 2003 EBITDA Bonus Pool. The Executive shall be entitled to a cash
bonus equal to 12% of the EBITDA Bonus Pool for fiscal year 2003, which bonus
payment will be paid to the Executive as soon as reasonably practicable
following fiscal year 2003, but in any event not later than April 1st. Such
EBITDA Bonus Pool shall be equal to 50% of the amount by which the Company's
EBITDA exceeds $35 million, up to $42 million for fiscal year 2003, excluding
bonuses and costs related to the Merger (including, but not limited to, legal
and professional fees related to the Merger; non-cash write-offs; and severance
costs related to 2003 terminations); provided, however, that the EBITDA Bonus
Pool shall not exceed $3.5 million, and provided, further, that, if the EBITDA
attributable to the Company's business excluding EBITDA attributable to the
Telezapper product for fiscal year 2003 does not equal or exceed $30 million,
then no such EBITDA Bonus Pool shall be created, and the Executive shall be
entitled to receive no payment under this Section 5.C. All determinations of
EBITDA for purposes of determining the amount of the EBITDA Bonus Pool and
participants' entitlement to a payment thereunder shall be made in accordance
with generally accepted accounting principles applied in the United States and
consistent with the Company's recent historical practices.
D. Annual Incentive Plan. The Company shall adopt an Annual
Incentive Plan for fiscal year 2004 and later fiscal years (the "AIP"), in which
the Executive shall participate. The annual AIP payment to the Executive will be
calculated as a percentage of the Executive's annual Base Salary, the percentage
based upon the Company's actual performance compared to the various targeted
levels set forth by the Board at the beginning of each fiscal year. The annual
AIP payment will be paid to the Executive as soon as reasonably practicable
following each annual calendar period, but in any event not later than April
1st. The Executive's level of participation in the AIP may not be reduced
without his consent.
E. Stock Options and Phantom Stock Rights. The Executive may
receive, from time to time, during the Term, such stock options and phantom
stock rights as are awarded by the Board or a Committee of the Board under plans
authorized by the Board; provided that the Executive shall be granted options to
purchase 1,000,000 shares of TTI (the "TTI Options") in May 2003, following
TTI's earnings announcement for fiscal year 2002 or as soon thereafter as
practicable. Within 30 days after the date of execution of the Merger Agreement,
the Company shall transmit to the Executive an offer sheet containing the terms
of the TTI Options which is intended to reflect the terms of the TTI Options
when issued. The terms of such offer sheet shall be consistent with the
following:
(i) the TTI Options shall have a term of five years from the
date of grant (subject to earlier termination in the event of the
Executive's termination of employment);
(ii) the TTI Options shall have the lowest per share
subscription price on the date of grant permitted by the terms of the plan
pursuant to which such options are issued;
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(iii) the TTI Options shall vest ratably over a period of 12
months; and
(iv) the TTI Options shall otherwise be subject to the most
favorable terms and conditions applicable to, and the provisions of such
options shall be interpreted consistently with the provisions of any
option agreement of, any member of senior management of any subsidiary or
affiliate of TTI who has been granted options to purchase shares of TTI.
The Company shall cause to be obtained any and all approvals necessary for the
issuance of the TTI Options, and failure to obtain any such approval(s) shall
not excuse the Company's performance under this Section 5.E.
6. Benefits and Expenses.
A. During the Term, the Company will provide benefits to the
Executive no less favorable than those benefits made available to other Company
senior management members (excluding the President and Chief Executive Officer),
including participation in group term life insurance, group health,
hospitalization, dental and vision coverage, disability coverage, the 401(k)
retirement plan, and maintenance of the current vacation plan.
B. Reasonable travel, entertainment and other business expenses
incurred by the Executive in the performance of his duties hereunder shall be
reimbursed by the Company in accordance with Company policies in effect from
time to time.
C. During the Term, the Company shall provide the Executive with a
monthly car allowance of $775 per month.
D. The Executive shall be indemnified by the Company against claims
arising in connection with his status as an employee, officer, director or agent
of the Company in accordance with the Company's policies in effect from time to
time, subject to applicable law.
7. Benefits Upon Termination.
A. Triggering Termination. On or after the Closing Date, in the
event of the Executive's termination without Cause, if the Executive terminates
his employment for Good Reason or if the Company gives notice of its intention
not to renew this Agreement (collectively, "Triggering Termination"), the
Executive shall be entitled to the following severance benefits:
(i) a severance payment equal to one-half of the sum of the
Executive's current annual Base Salary and the Executive's average annual
bonus compensation under the MIP, the AIP and/or the 2003 EBIDTA Bonus
Pool, whichever shall be applicable, earned over the three most recent
completed fiscal years of the Company; provided, however, that for the
purposes of computing such three-year average bonus compensation, the
amount deemed to have been earned under the 2003 EBITDA Bonus Pool for
fiscal year 2003, if applicable, shall be the lesser of (1) the bonus
amount earned by the Executive for fiscal year 2002 under the MIP or (2)
the actual bonus amount
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earned under the 2003 EBITDA Bonus Pool. Such severance payment shall be
paid in full as a lump sum within 30 days after the Triggering
Termination;
(ii) payment of the Executive's Base Salary through the date of
termination;
(iii) a pro rata payment under the MIP, the 2003 EBITDA Bonus Pool
and/or the AIP, as applicable, based on the period of time served during
the year in which the Triggering Termination occurs, to be paid to the
Executive at such time as payments under such plan are customarily made to
participants; provided, however, that, if the Triggering Termination shall
occur in 2003, such pro rata payment shall be deemed to be the greater of
(a) the payment to which the Executive would have been entitled if the
Triggering Termination had occurred on July 1, 2003; or (b) the payment
calculated using the actual date of the Triggering Termination; and
(iv) any additional benefits or perquisites to which the Executive
and his dependents, as applicable, shall be entitled (or would have been
entitled, if the Executive or his dependents would have been eligible for
such benefits or perquisites but for the Executive's termination of
employment) under the Company's benefit plans and perquisite arrangements
generally applicable to senior management as may be in effect from time to
time, including any unpaid payment under the MIP, the 2003 EBITDA Bonus
Pool or the AIP for a prior year, group health, hospitalization, dental
and vision coverage for him and his family on the same basis as active
senior management of the Company for the 24 months subsequent to the
Triggering Termination, and accrued vacation. The Company agrees after a
Change in Control and/or for the period 24 months subsequent to the
Triggering Termination not to take any action that would adversely affect
the Executive's and his dependents' participation in, or materially reduce
the benefits under, any of the Company's benefit plans or perquisite
arrangements or deprive the Executive or his dependents of any material
fringe benefit currently enjoyed, except to the extent that such action,
material reduction or deprivation is generally applicable to active
members of senior management of the Company and their dependents.
B. Other Employment Terminations. If the Executive's employment (i)
is terminated by the Company for Cause, (ii) is voluntarily terminated by the
Executive for other than Good Reason, or (iii) is terminated due to the
Executive's death or Disability, the Company shall pay to the Executive, or his
estate, his unpaid Base Salary to the date of that termination and accrued
vacation. In addition, the Company shall pay to the Executive, or his estate,
any benefits to which the Executive shall be entitled under the Company's
benefit plans, including payment of amounts fully earned but not paid under the
MIP, the 2003 EBITDA Bonus Pool and/or the AIP, as applicable, for the year in
which such termination occurred (and any such unpaid amount for a prior year).
Further, if the Executive's termination of employment occurs prior to December
31 in a fiscal year due to the Executive's death or Disability, the Company
shall pay to the Executive, or his estate, a pro rata payment, through the date
of such termination, under the MIP, the 2003 EBITDA Bonus Pool and/or the AIP,
as applicable.
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C. Certain Definitions. The following terms shall have the meanings
specified below:
(i) "Cause" shall mean the following: (1) for the period prior
to January 1, 2004, (a) an act or acts of dishonesty by the Executive
constituting a felony and resulting or intended to result directly or
indirectly in substantial gain or personal enrichment at the expense of
the Company; or (b) the willful and continued failure by the Executive
substantially to perform his duties with the Company (other than any such
failure resulting from incapacity due to mental or physical illness) after
a demand in writing for substantial performance is delivered by the Board,
which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed his duties,
and such failure results in demonstrable material injury to the Company;
provided that the Executive's employment shall in no event be considered
to have been terminated by the Company for Cause if such termination took
place as the result of (I) bad judgment or negligence, or (II) any act or
omission without intent of gaining therefrom directly or indirectly a
profit to which the Executive was not legally entitled, or (III) any act
or omission believed in good faith to have been in or not opposed to the
interest of the Company, or (IV) any act or omission in respect of which a
determination be made that the Executive met the applicable standard of
conduct prescribed for indemnification or reimbursement or payment of
expenses under the Regulations of the Company or the laws of the State of
Ohio, in each case as in effect at the time of such act or omission; and
(2) for the period on and after January 1, 2004, (a) an act or acts of
dishonesty by the Executive constituting a felony and resulting or
intended to result directly or indirectly in substantial gain or personal
enrichment at the expense of the Company; (b) the willful and continued
failure by the Executive substantially to perform his duties with the
Company (other than any such failure resulting from incapacity due to
mental or physical illness) after a demand in writing for substantial
performance is delivered by the Board, which demand specifically
identifies the manner in which the Board believes that the Executive has
not substantially performed his duties, and such failure results in
demonstrable material injury to the Company; (c) any material breach by
the Executive of any provision of this Agreement, which is not cured by
the Executive after having been afforded a reasonable opportunity to do
so; or (d) any willful or reckless act or omission which has a material
adverse impact on the business or reputation of the Company; provided that
the Executive's employment shall in no event be considered to have been
terminated by the Company for Cause if such termination took place as the
result of bad judgment, negligence or any act or omission believed in good
faith to have been in or not opposed to the interest of the Company. The
Executive shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to him a copy of a resolution duly
adopted by the Board at a meeting of the Board called and held for that
purpose (after reasonable notice to the Executive and an opportunity for
him, together with his counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the Executive was guilty of
the conduct constituting "Cause" as set forth above and specifying the
particulars thereof in detail.
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(ii) "Good Reason" will exist if any one or more of the
following occur:
(1) a material failure by the Company or its Affiliates
to honor any of its obligations under Sections 4, 5.A., 5.B., 5.C.,
5.D., 5.E., 6.A., 6.B., 6.C., 6.D.,15. or 20.B. which failure is not
cured by the Company after having been afforded a reasonable
opportunity to do so, or
(2) an adverse change in nature or scope of the
authority, powers, functions, responsibilities or duties attached to
his position as it existed on the Effective Date (including but not
limited to assignment by the Company to the Executive of duties
inconsistent with his current position, duties, responsibilities,
and status with the Company or a change of his reporting
responsibilities or titles currently in effect) without the prior
written consent of the Executive, which is not remedied within ten
calendar days after receipt by the Company of written notice from
the Executive of such change; or
(3) if a change in circumstances significantly affecting
the Executive's position has occurred (including, without
limitation, a change in the scope of the business or other
activities for which he is responsible), and as a result thereof the
Executive has been rendered substantially unable to carry out, has
been substantially hindered in the performance of, or has suffered a
substantial reduction in, any of the authorities, powers, functions,
responsibilities or duties attached to his position as such position
existed on the Effective Date, which situation is not remedied
within ten calendar days after written notice to the Company from
the Executive; or
(4) the Company shall, without the Executive's prior
written consent, relocate its principal executive offices, or
require the Executive to have his principal location of work
changed, to any location which is in excess of 30 miles from the
current location thereof or cause the Executive to travel away from
his office in the course of discharging his responsibilities or
duties significantly more (in terms of consecutive days or aggregate
days in any calendar year) than was required of him previously; or
(5) failure to elect or reelect or maintain the
Executive in his capacity as __________________ or as an officer
having a more senior position with the Company.
(6) After a Change in Control, any purported termination
by the Company of the Executive's employment that is not effected
pursuant to a Notice of Termination satisfying the requirements of
Section 7.D., then, for purposes of this Agreement, no such
purported termination shall be effective, provided, if the failure
to comply with Section 7.D. occurs despite the Company's good faith
efforts to comply, no Good Reason shall exist and the provisions of
Section 7.D. shall govern.
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D. Notice of Termination. Any purported termination of employment by
the Company for Cause shall be communicated by written Notice of Termination to
the Executive in accordance with Section 16 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 employment under the provision so indicated. Any good
faith failure to comply with the provisions of this Section D. or Section 16
shall require that the process set forth in this Section 7D. be repeated to
comply with such provisions.
8. Confidentiality; Nondisparagement; Nonsolicitation; Noncompetition.
A. The Executive acknowledges the time and expense incurred by the
Company and its subsidiaries in connection with developing proprietary and
confidential information in connection with its businesses and operations. The
Executive agrees that he will not at any time during the Term or after
termination of his employment, divulge, communicate, use to the detriment of the
Company or any of its subsidiaries or Affiliates (collectively, the "Group") or
for the benefit of any other person, firm or entity, or misappropriate in any
way, any confidential information or trade secrets relating to the Group,
including without limitation, business strategies, operating plans, acquisition
strategies (including the identities of (and any other information concerning)
possible acquisition candidates), pro forma financial information, marketing
analyses, acquisition terms and conditions, personnel information, trade
processes, manufacturing methods, know-how, customer lists and relationships,
supplier lists, or other non-public proprietary and confidential information
relating to the Group, except to the extent such information is lawfully
obtainable from public sources or such use or disclosure is (i) necessary to the
performance of the Executive's duties under this Agreement, (ii) required by
applicable laws, regulations, or by the rules of a self regulatory organization,
or (iii) authorized by the Company. Additionally, during the Noncompete Period,
the Executive will not make disparaging remarks about the Company or any of its
Subsidiaries, employees, directors, suppliers or customers.
B. During the six-month period following the termination of the
Executive's employment (the "Noncompete Period"), the Executive shall not,
directly or indirectly, for himself or on behalf of any other person, firm or
entity, employ, engage or retain any person who at any time during the preceding
12-month period was an employee or consultant of any member of the Group or
contact any supplier, customer, employee or consultant from the Group for the
purpose of soliciting or diverting any such supplier, customer, employee or
consultant from any member of the Group or otherwise interfering with the
business relationship of any member of the Group with any of the foregoing,
without prior written authorization from the Company.
C. During the Noncompete Period, the Executive shall not, directly
or indirectly, engage in, or serve as a principal, partner, joint venturer,
member, manager, trustee, agent, stockholder, director, officer, or employee of,
or consultant or advisor to, or in any other capacity, or in any manner, own,
control, manage, operate, or otherwise participate, invest, or have any interest
in, any person, firm or entity that engages in North America in the floor care
business or in any business that is competitive with any product code or any
other business that
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generated 10% of the revenues of the Group within the preceding 24-month period,
without prior written authorization from the Company; provided, however, that
the ownership of less than 5% of the outstanding equity securities of a publicly
traded corporation or other publicly traded legal entity shall not in and of
itself be a violation of this Section 8.C.
D. The Executive acknowledges that his employment by the Company and
agreements herein (including the agreements of this Section 8) are reasonable
and necessary for the protection of the Company and are essential inducements to
the Company entering into this Agreement. Accordingly, the Executive shall be
bound by the provisions hereof (including the provisions of this Section 8) to
the maximum extent permitted by law, it being the intent and spirit of the
parties that the foregoing shall be fully enforceable. However, the parties
further agree that, if any of the provisions of this Section 8 shall for any
reason be held to be excessively broad as to duration, geographical scope, or
subject matter, such provision shall be construed by limiting and reducing it so
as to be enforceable to the extent compatible with the applicable law as it
shall herein pertain.
E. The Executive acknowledges that the services to be rendered under
the provisions of this Agreement are of a unique nature and that it would be
difficult or impossible to replace such services and that by reason thereof, the
Executive agrees and consents that if he violates the provisions of this Section
8, the Company, in addition to any other rights and remedies available under
this Agreement or otherwise, shall be entitled to an injunction to be issued or
specific performance to be required restricting the Executive from committing or
continuing any violation of the provisions of this Section 8.
9. Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of Ohio, without
giving effect to the conflict of law provisions thereof. Any claim or action
arising hereunder shall be litigated exclusively in the Court of Common Pleas,
Cuyahoga County, Ohio or federal courts situated in the Northern District of
Ohio, Eastern Division, and each party irrevocably consents and submits to the
personal and subject matter jurisdiction of said courts.
10. Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes and cancels any and all prior discussions, correspondence, agreements
or understandings (whether oral or written) between the parties hereto with
respect to such matters, excluding any agreements relating to stock option and
phantom stock grants or indemnity as an employee, officer, director or agent.
Any representation, premise or condition, whether written or oral, not
specifically incorporated herein, shall be of no binding effect upon the
parties.
11. Severability; Assignment.
A. Except for Section 8 hereof, if any portion of this Agreement is
held invalid or unenforceable by a court of competent jurisdiction, such portion
shall be deemed deleted as though it had never been included herein, but the
remainder of this Agreement shall remain in full force and effect.
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B. This Agreement shall not be assignable by the Executive except
pursuant to the laws of descent and distribution and then only for purposes of
enforcing the Executive rights hereunder and shall be assignable by the Company
only with the consent of the Executive, provided, however, that the Company may
assign its rights and obligations under this Agreement without consent of the
Executive in the event that the Company shall effect a sale of the Company that
would constitute a Change in Control.
12. Cooperation with Regard to Litigation. The Executive agrees to
cooperate with the Company during the Noncompete Period by making himself
reasonably available to testify on behalf of the Company or its Affiliates, in
any action, suit or proceeding, whether civil, criminal, administrative, or
investigative and to assist the Company or any of its Affiliates in any such
action, suit, or proceeding by providing information and meeting and consulting
with its counsel and representatives. The Executive shall be reimbursed promptly
for all out of pocket expenses incurred in satisfying his obligations under this
Section 12.
13. Waiver; Amendment. No provision hereof may be waived except by a
written agreement signed by all parties hereto. The waiver of any term or of any
condition of this Agreement shall not be deemed to constitute a waiver of any
other term or condition. This Agreement may be amended only by a written
agreement signed by all parties hereto.
14. Survival of Payment Provisions. The payment provisions of Sections 6,
7, 12, 15, 19, 20 and 21 hereof shall survive the expiration, suspension or
termination, for any reason, of this Agreement.
15. Successors; Binding Agreement. This Agreement shall inure to the
benefit of, and be binding upon, the Company, its successors and permitted
assigns. The Company will require any successor or assignee (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, 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.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as would apply if the Executive terminated his employment for Good Reason.
This Agreement shall also inure to the benefit of and be binding upon the
Executive, his personal or legal representatives, his executors, administrators,
heirs, distributees, devisees and legatees. If the Executive should die while
any amount would still be payable hereunder had the Executive continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to his devisee, legatee, or other designee or,
if there be no such designee, to his estate.
16. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or delivered by
recognized overnight courier or mailed by United States registered mail, return
receipt requested, postage prepaid, addressed to the Secretary of the Company,
7005 Cochran Road, Glenwillow, Ohio 44139, and addressed to the Executive at his
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last known address contained in the personnel records of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
17. Withholding Taxes. The Company may withhold from any amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
18. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
19. Set-Off; Interest on Overdue Payments. There shall be no right of
set-off or counterclaim against, or delay in, any payment by the Company to the
Executive hereunder in respect of any claim against or debt or obligation of the
Executive, whether arising hereunder or otherwise. Without limiting the rights
of the Executive at law or in equity, if the Company fails to make any payments
hereunder on a timely basis, the Company shall pay interest on the amount
thereof at an annualized rate equal to the rate in effect, at the time such
payment should have been made, under the Company's 401(k) plan for loans to
participants in such plan.
20. Parachute Payments.
A. Reduction of Certain Payments. If it shall be determined that any
payment, distribution or benefit received or to be received by the Executive
from the Company or any of its Affiliates, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise pursuant to or by reason of any other agreement, policy, plan, program
or arrangement, including without limitation any stock option, phantom stock,
performance share, performance unit, restricted stock, stock appreciation right
or similar right, or the lapse or termination of any restriction on, or the
vesting or exercisability of, any of the foregoing in connection with a Change
in Control (individually and collectively, "Payments") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") or to any similar tax imposed by state or local law, or to
any interest or penalties with respect to such taxes (such tax or taxes,
together with any such interest and penalties, being hereafter collectively
referred to as the "Excise Tax"), then the Payments otherwise payable to the
Executive shall be reduced to the minimum extent necessary (but in no event less
than zero) so that no portion of the Payments, after such reduction, would be
subject to the Excise Tax.
B. Method of Determinations. All determinations required to be made
under Section 20.A. shall be made by the Company's independent auditors (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and the Executive within 15 business days after the Company makes
any Payments to the Executive. The determination of tax liability and the
assumptions made by the Accounting Firm shall be subject to review by the
Executive's tax advisor, and, if the Executive's tax advisor does not agree with
the determination reached by the Accounting Firm, then the Accounting Firm and
the Executive's tax advisor shall jointly designate a nationally-recognized
public accounting firm
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within five business days after notice has been given to the Company of the
Executive's disagreement with the Accounting Firm's calculation, which shall
make the determination within 15 business days after its appointment. If the
parties cannot agree on a nationally recognized public accounting firm, then
both parties shall select a nationally recognized public accounting firm who
shall then jointly select a third nationally recognized public accounting firm
which shall make the determination within 15 business days after its
appointment. All fees and expenses of the accountants and tax advisors retained
by either the Executive or the Company shall be borne by the Company. Any
determination by a jointly designated public accounting firm shall be binding
upon the Company and the Executive. If an accounting firm determines that no
Excise Tax is payable by the Executive, it shall, at the same time as it makes
such determination, furnish the Company and the Executive an opinion that the
Executive has substantial authority not to report any Excise Tax on his federal,
state or local income or other tax return.
21. Legal Fees and Expenses.
A. Each party shall bear its own legal fees and expenses in
connection with any dispute arising under this Agreement; provided, however,
that the Company: (1) irrevocably authorizes the Executive from time to time to
retain counsel of his choice to represent the Executive in connection with the
negotiation and interpretation or enforcement of this Agreement, including the
initiation or defense of any litigation or other legal action, whether by or
against the Company or any Director, officer, stockholder or other person
affiliated with the Company, in any jurisdiction; (2) notwithstanding any
existing or prior attorney-client relationship between the Company or any person
affiliated with the Company and such counsel, irrevocably consents to the
Executive's entering into an attorney-client relationship with such counsel and
in that connection the Company and the Executive agree that a confidential
relationship shall exist between the Executive and such counsel; and (3) shall
pay or cause to be paid and shall be solely responsible for any and all
reasonable attorneys' and related fees and expenses incurred by the Executive in
connection with any litigation or other legal action, whether by or against the
Company, or any Director, officer, stockholder or other person affiliated with
the Company, in any jurisdiction, arising out of any provision of this
Agreement, where and to the extent to which the Executive prevails as to
material issues in such litigation or other legal action. Such payment shall be
made to the Executive not later than seven days following the entry of judgment
in favor of the Executive or other resolution purported by the decision-maker to
be final, and shall not be withheld on account of a pending appeal from such
judgment or resolution, but the Company shall have the right to recover such
payment from the Executive if the Executive shall lose on appeal.
B. In the event that the Merger Agreement is terminated, the
foregoing provisions of Section 21.A. shall be void and of no effect, and this
Section 21.B. shall apply: It is the intent of the Company that the Executive
not be required to incur the legal expenses associated with (i) negotiation or
interpretation of any provision in, or obtaining of any right or benefit under,
this Agreement or (ii) the enforcement of his rights under this Agreement by
litigation or other legal action, because the cost and expense thereof would
substantially detract from the benefits intended to be extended to the Executive
hereunder. Accordingly, the Company irrevocably authorizes the Executive from
time to time to retain counsel of his choice,
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at the expense of the Company as hereafter provided, to represent the Executive
in connection with the negotiation and interpretation or enforcement of this
Agreement, including the initiation or defense of any litigation or other legal
action, whether by or against the Company or any Director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company or any person affiliated with the Company and such counsel, the Company
irrevocably consents to the Executive's entering into an attorney-client
relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship shall exist between the
Executive and such counsel. The Company shall pay or cause to be paid and shall
be solely responsible for any and all reasonable attorneys' and related fees and
expenses incurred by the Executive under this Section 21.B.
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Executed in Glenwillow, Ohio the 16th day of December, 2002.
ROYAL APPLIANCE MFG. CO.
By: ___________________________________ ___________________________________
"Executive"
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