AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE (the "Agreement") is entered into as of the
1st day of October, 1996 (the "date hereof"), by and between SUNBEAM
CORPORATION, a Delaware corporation (the "Company"), and Spencer J. Volk
("Employee").
RECITALS:
A. The Company and Employee are parties to a certain Employment
Agreement dated as of January 1, 1994 (the "Employment Agreement");
B. The Company and Employee agree that the Employment Agreement will be
terminated, effective as of October 31, 1996, pursuant to Section 5(b) thereof;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
SECTION 1. TERMINATION OF EMPLOYMENT PURSUANT TO THE EMPLOYMENT
AGREEMENT. Employee acknowledges that his employment is being terminated,
effective as of October 31, 1996. Employee hereby resigns, effective as of
October 31, 1996, all elected or appointed offices or directorships held by him
with the Company and/or any of its subsidiaries or any member of the "Sunbeam
Group," as defined below.
SECTION 2. PAYMENTS TO EMPLOYEE. A. SALARY CONTINUATION AND OTHER
PAYMENTS -
(1) SALARY CONTINUATION - During the period from the date hereof
through and including October 31, 1996, Employee shall continue to
receive compensation in the form of his base salary, payable in the
same manner as heretofore paid to Employee and subject to all amounts
required by law to be withheld;
(2) CONTRACTUAL SEVERANCE PAYMENT - In consideration of the execution
and delivery of this Agreement by Employee, the execution and delivery
of the Reaffirmation of this Agreement as set forth below, and of the
releases and covenant not to sue provided for hereunder, seven (7) days
after execution and delivery by Employee of the Reaffirmation Agreement
set forth below (provided that he has not revoked such Agreement
pursuant to the provisions of Section 5 hereof during such seven day
period), Employee shall be entitled to receive an amount equal to one
year's base salary at Employee's current rate of pay, payable in a lump
sum (the "Severance Payment"), less all amounts required by law to be
withheld. He also shall receive payment for any accrued but unpaid or
unused vacation;
(3) ADDITIONAL COMPENSATION - In addition to the foregoing payments,
and in recognition of his cooperation in the transition of management
of the Company, at the same time as the payment provided pursuant to
Section 2(A)(2) above is made, the Company also shall pay to Employee,
as additional compensation, the sum of $50,000, less all amounts
required by law to be withheld.
B. EBRP ACCOUNT - Employee shall receive the balance of his vested
Executive Benefit Replacement Plan (otherwise known as the "SERP") account with
the Company, less applicable withholdings.
C. ACKNOWLEDGMENTS - Employee acknowledges that he is not vested in any
bonus or other incentive plan and that nothing is due and owing to him under any
such arrangement. Employee hereby acknowledges that upon the making of the
payments provided for herein, Employee will have received payment in full of all
amounts due and owing to him under the Employment Agreement, except for
reimbursement of expenses in the ordinary course (which the Company will process
promptly upon receipt from Employee).
SECTION 3. STOCK OPTIONS. Employee is vested in certain stock options
as of October 31, 1996, as set forth on EXHIBIT A attached hereto and
incorporated by reference herein. Such options are governed by the terms of the
Company's Equity Team Plan, as in effect on the date hereof, and may be
exercised in accordance with such Plan.
SECTION 4. BENEFIT PLANS. Employee shall continue to participate in the
Company's benefit plans in which he currently participates (including insurance
coverages) through and including October 31, 1996. Beginning November 1, 1996,
Employee shall have the right to continue medical and dental insurance coverages
under the provisions of COBRA for the period of time prescribed by law;
provided, however, that as long as Employee is not in default of any provision
of this Agreement, and as long as Employee elects to continue coverage under
COBRA and also continues to pay Employee's portion of the cost of medical and
dental insurance coverages, the Company shall continue to pay the Company's
portion of the cost of such coverages through and including October 31, 1997.
Beginning November 1, 1997, Employee shall be entitled to continue coverage
under COBRA at his own expense for the balance of the period prescribed by law.
SECTION 5. RELEASE AND COVENANT NOT TO SUE. In consideration of the
Severance Payment payable to (and the benefits provided to) Employee as set
forth above, Employee hereby RELEASES and FOREVER DISCHARGES the Company and any
parent, subsidiary, affiliated or related company or trust, including, but not
limited to, its or their respective predecessors, past and present officers,
directors, shareholders, agents, employees, legal representatives, successors,
trustees, fiduciaries and assigns (individually and collectively the "Sunbeam
Group"), of and from (and does hereby WAIVE), any and all rights, contracts,
claims (including claims sounding in tort), damages, actions, causes of action,
attorney fees, future employment or reinstatement and suits, whether or not
presently known, suspected or claimed, which Employee ever had, now has or
claims, or might hereafter have or claim against the Sunbeam Group (and any of
them), relating to, directly or indirectly, any matter or thing occurring, in
whole or in part, at any time, including, without limitation, any and all
rights, claims, grievances, arbitrations, or causes of action which Employee has
asserted, could assert, or which could be asserted on his behalf relating to his
hiring, employment with the Company prior to the date of execution and delivery
of this Agreement, his separation from such employment or post-employment
benefits, and under any federal, state or local law, ordinance, regulation or
rule, all of the foregoing as heretofore or hereafter amended, or under any
court decree, heretofore or hereafter promulgated. Employee also WAIVES ANY AND
ALL RIGHTS under the laws of any jurisdictions in the United States that would
limit the foregoing release and waiver. Employee recognizes that, among other
things, he is releasing the Sunbeam Group, of and from any and all claims he
might have against it, or any of them, for pain and suffering, emotional
distress, compensatory and punitive damages and for employment discrimination
based on age (including claims under the federal Age Discrimination in
Employment Act of 1967, as amended ("ADEA") or comparable state laws), sex,
national origin, race or color, mental or physical handicap or disability, or
religious belief under both federal and any similar state or local laws.
Employee hereby expressly waives and releases any right to reinstatement by the
Sunbeam Group and any right to the recovery of attorney's fees in any proceeding
between Employee and any member
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of the Sunbeam Group relating to the subject matter hereof. Employee also
COVENANTS NOT TO SUE the Sunbeam Group, or any of them, for any of the matters
covered by this Section 5.
There is expressly excluded from the scope of the above release
Employee's right to receive the benefits of this Agreement. There also is
excepted from the scope of this Release and Covenant not to Sue, any and all
claims which Employee may have for indemnification from the Company by reason of
his service as a director or officer of the Company or any of its subsidiaries,
pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation and Bylaws of the Company; provided that Employee shall cooperate
fully with the Company in the defense of any and all such claims for which
indemnification is provided to Employee by the Company.
EMPLOYEE ACKNOWLEDGES THAT THE COMPANY HAS GIVEN HIM ADEQUATE TIME (UP
TO 45 DAYS FROM THE DATE HEREOF AND FROM THE DATE OF HIS EXECUTION OF THE
REAFFIRMATION AGREEMENT SET FORTH BELOW, IF EMPLOYEE DESIRES) WITHIN WHICH TO
CONSIDER THIS AGREEMENT AND HAS ADVISED HIM IN WRITING TO CONSULT WITH COUNSEL
BEFORE SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES THAT HE UNDERSTANDS AND
THAT HE HAS ENTERED INTO THIS AGREEMENT FREELY AND VOLUNTARILY.
THE PARTIES FURTHER ACKNOWLEDGE THAT FOR A PERIOD OF SEVEN (7) DAYS
FOLLOWING THE EXECUTION OF THIS AGREEMENT AND FOR A PERIOD OF SEVEN (7) DAYS
FOLLOWING THE EXECUTION OF THE REAFFIRMATION AGREEMENT SET FORTH BELOW, EMPLOYEE
MAY REVOKE THIS AGREEMENT. SUCH REVOCATION SHALL BE MADE IN WRITING AND
DELIVERED TO THE GENERAL COUNSEL OF THE COMPANY BY THE CLOSE OF BUSINESS ON THE
SEVENTH DAY FOLLOWING THE EXECUTION HEREOF BY EMPLOYEE. IF NOT REVOKED WITHIN
SUCH SEVEN DAY PERIOD, THIS AGREEMENT SHALL THEREAFTER BE IRREVOCABLE.
SECTION 6. COOPERATION; COVENANTS OF CONFIDENTIALITY AND
NON-COMPETITION.
A. Employee hereby agrees to cooperate with the Company in
transitioning management of the Company's International Group and also to assist
in writing a marketing plan for the International Group through and including
October 31, 1996. He further agrees to cooperate with the Company in providing
information regarding any matters on which he may be working at the time of his
separation from employment by the Company, including providing such cooperation
following the termination of such employment (provided, however, that he shall
not be obligated to incur any unreimbursed expense in so doing nor shall it
interfere with his seeking other employment or performing the duties of such
other employment).
B. The parties hereby incorporate by reference the Confidentiality and
Noncompetition provisions of the Company's Equity Team Plan, as in effect on the
date hereof and the provisions of Section 7 of the Employment Agreement, and
Employee expressly acknowledges his obligations of Confidentiality and
Noncompetition thereunder.
SECTION 7. MISCELLANEOUS.
a. Except as otherwise provided in this Agreement, all notices
required or permitted hereunder or process relating hereto
shall be in writing and signed by the party giving
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notice, and shall be deemed to have been given when
hand-delivered by personal delivery, by Federal Express or
similar courier service, when sent and confirmed by facsimile,
or three (3) days after being deposited in the United States
mail, registered or certified, with postage prepaid, return
receipt requested, addressed as follows:
If to the Company: SUNBEAM CORPORATION
2100 New River Center
200 East Las Olas Boulevard
Fort Lauderdale, FL 33301
Attention: General Counsel
Facsimile: (954) 767-2105
If to the Employee: Spencer J. Volk
1335 North Astor Street, Unit C
Chicago, IL 60610
or to such other address as either party may designate for
himself or itself by notice given to the other party from time
to time in accordance with the provisions hereof.
b. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, legatees,
devisees, personal representatives, successors and assigns.
c. No delay on the part of either party in the exercise of any
right or remedy shall operate as a waiver thereof, and no
single or partial exercise by a party of any right or remedy
shall preclude other or further exercise thereof or the
exercise of any other right or remedy. The waiver of any
breach or condition of this Agreement by either party shall
not constitute a precedent in the future enforcement of any of
the terms and conditions of this Agreement.
d. Any uncertainty or ambiguity shall not be construed for or
against either party as an attribution of drafting to either
party.
e. Whenever possible, each provision of this Agreement shall be
construed and interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement or the application thereof to any party or
circumstance shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the
extent of such prohibition without invalidating the remainder
of such provision or any other provision of this Agreement or
the application of such provision to other parties or
circumstances.
f. All discussions, correspondence, understandings and agreements
heretofore made between the parties are superseded by and
merged into this Agreement, which alone fully and completely
expresses the agreement between the parties with respect to
the subject matter hereof (except for provisions of the
Employment Agreement and of the Equity Team Plan which are
specifically referred to or incorporated by reference herein),
and the same is entered into with neither party relying upon
any statement or representation made by or on behalf of any
party not embodied in this Agreement. Any modification of this
Agreement may be made only by a written agreement signed by
both of the parties to this
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Agreement.
g. This Agreement shall be governed in all respects by the
internal laws of the State of Florida (which is the law
governing the Employment Agreement), without regard to
principles of conflicts of laws.
h. No third party shall be deemed to be or shall be, or become, a
beneficiary of any provision of this Agreement. By entering
into this Agreement, the Company has not agreed to grant
similar benefits to any other employee, whether or not
similarly situated, and no precedent, practice, policy or
usage shall be established by the entry of the Company into
this Agreement.
j. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original, and each of which,
when taken together, shall constitute one and the same
instrument.
SECTION 8. RETURN OF COMPANY PROPERTY. Employee shall return to the
Company any property belonging to the Company as soon as practicable following
the date hereof, and in any event no later than October 31, 1996, to include any
credit cards, telephone credit cards, cellular phones, computers, records of
whatever type or kind, or any other property of the Company whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates set forth below and as of the date and year first above written.
EMPLOYEE SUNBEAM CORPORATION
/s/SPENCER J. VOLK /s/ DAVID C. FANNIN
- -------------------------------- ------------------------------
Spencer J. Volk
By: David C. Fannin
Its: EVP & General Counsel
Date: October 1, 1996 Date: October 21, 1996
REAFFIRMATION AGREEMENT
Employee, Spencer J. Volk, as of the final date of his employment by
the Company (October 31, 1996) hereby reaffirms, restates and ratifies each and
every provision of the foregoing Agreement, with the same effect as if first
entered into on the date hereof. Such reaffirmation, restatement and
ratification includes without limitation the Release and Covenant Not to Sue set
forth in Section 5 hereof, including the provisions thereof which afford the
following rights to Employee:
1. EMPLOYEE ACKNOWLEDGES THAT THE COMPANY HAS GIVEN HIM ADEQUATE
TIME (UP TO 45 DAYS FROM THE DATE OF THIS REAFFIRMATION AGREEMENT, IF EMPLOYEE
DESIRES), WITHIN WHICH TO CONSIDER THIS
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AGREEMENT AND HAS ADVISED HIM IN WRITING TO CONSULT WITH COUNSEL BEFORE SIGNING
THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES THAT HE UNDERSTANDS AND THAT HE HAS
ENTERED INTO THIS AGREEMENT FREELY AND VOLUNTARILY.
2. THAT FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING THE EXECUTION OF THIS
REAFFIRMATION AGREEMENT, EMPLOYEE MAY REVOKE THIS AGREEMENT. SUCH REVOCATION
SHALL BE MADE IN WRITING AND DELIVERED TO THE GENERAL COUNSEL OF THE COMPANY BY
THE CLOSE OF BUSINESS ON THE SEVENTH DAY FOLLOWING THE EXECUTION HEREOF BY
EMPLOYEE. IF NOT REVOKED WITHIN SUCH SEVEN (7) DAY PERIOD, THIS AGREEMENT SHALL
THEREAFTER BE IRREVOCABLE.
Employee Sunbeam Corporation
- ---------------------------- ------------------------------
Spencer J. Volk By____________________________
Its___________________________
Date_______________________ Date__________________________
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EXHIBIT A
NAME ORIGINAL OPTION GRANTS SHARES REMAINING
DATE PRICE SHARES TOTAL VESTED
---- ----- ------ ----- ------
Spencer Volk 1/3/94 $21.42 220,000 220,000 127,900
11/1/95 $14.39 70,000 70,000 14,000
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