AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE (the "Agreement") is entered into as of the
7th day of August, 1996 (the "date hereof"), by and between SUNBEAM CORPORATION,
a Delaware corporation (the "Company"), and Paul M. O'Hara ("Employee").
RECITALS:
A. The Company and Employee are parties to a certain Employment
Agreement dated as of January 1, 1995 (the "Employment Agreement");
B. The Company has notified Employee that it has terminated the
Employment Agreement 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 has been terminated,
effective as of the date hereof. Employee hereby resigns, effective immediately,
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. PAYMENT TO EMPLOYEE - In
consideration of the execution and delivery of this Agreement by Employee, and
of the releases and covenant not to sue provided for hereunder, seven (7) days
after execution by Employee of this Agreement (provided that he has not revoked
this Agreement pursuant to the provisions of Section 5 hereof), Employee shall
be entitled to receive an amount equal to one year's base salary at Employee's
current rate of pay (the "Severance Payment"), 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 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's insurance coverages shall extend
through the end of the month of August, 1996, and he shall have the right to
continue certain insurance coverages under the provisions of COBRA for the
period of time 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 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 21 DAYS 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, 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.
2
SECTION 6. COVENANTS OF CONFIDENTIALITY AND NON-COMPETITION. 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 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: Paul M. O'Hara
430 Coral Way
Fort Lauderdale, FL 33301
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
3
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 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.
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/PAUL M. O'HARA /s/DAVID C. FANNIN
- --------------------------------- -------------------------------
Paul M. O'Hara
By: David C. Fannin
Its: EVP & General Counsel
Date: August 12, 1996 Date: August 12, 1996
4
EXHIBIT A
NAME ORIGINAL OPTION GRANTS SHARES REMAINING
DATE PRICE SHARES TOTAL VESTED
---- ----- ------ ----- ------
Paul O'Hara 3/1/94 $20.79 162,500 162,500 101,563
11/1/95 $14.39 110,000 110,000 183,33
11/21/95 $14.94 52,500 52,500 7,875
5