EXHIBIT 10.kk
COMPENSATION AND INDEMNIFICATION AGREEMENT
This COMPENSATION AND INDEMNIFICATION AGREEMENT is made and entered into as of
the 29th day of June, 1998 (the "Agreement") among, on the one hand, SUNBEAM
CORPORATION, a Delaware corporation (including all subsidiaries and affiliates
thereof, collectively referred to herein as the "Company"), and, on the other
hand, Howard G. Kristol, Charles M. Elson, Peter A. Langerman and Faith
Whittlesey (each, a "Special Committee Member", collectively referred to herein
as the "Special Committee").
WHEREAS, the Executive Committee of the Company's Board of
Directors, pursuant to a resolution unanimously adopted by such Executive
Committee on June 29, 1998, established the Special Committee for the purpose of
considering, negotiating and approving (if the Special Committee deems it
appropriate) on behalf of the Board of Directors of the Company transactions and
arrangements with Mafco Holdings, Inc. and its affiliates ("Mafco") arising out
of the acquisition of The Coleman Company, Inc. ("Coleman") by the Company from
Mafco and pertaining to Mafco's future involvement in the management and affairs
of the Company, including, without limitation, any additional issuances of
shares, warrants or options related thereto; and
WHEREAS, the Executive Committee of the Company's Board of
Directors, pursuant to the aforementioned resolution, appointed the directors
identified above as the members of the Special Committee; and
WHEREAS, in order to induce the Special Committee Members to
serve as the members of the Special Committee and to accept the additional
duties, responsibilities and burdens associated with such service, the Company
desires, and the Executive Committee of the Board of Directors resolved, to
provide the Special Committee Members with the compensation and indemnification
arrangements set forth herein; and
WHEREAS, the Special Committee Members are willing to serve
and continue to serve as the members of the Special Committee on the terms set
forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements contained herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. SERVICE ON THE SPECIAL COMMITTEE; SCOPE OF INDEMNIFICATION.
Each Special Committee Member hereby agrees to serve as a member of the Special
Committee on and subject to the terms set forth herein and in the Executive
Committee resolution described in the recitals hereto. It is understood and
agreed that each Special Committee Member, in his or her sole discretion, may
resign from such position at any time and for any reason, and that the Special
Committee Members at any time may recommend the dissolution of the Special
Committee to the Board of Directors of the Company. The Company's obligation to
indemnify each Special Committee Member in the manner set forth in this
Agreement shall continue in full force and effect, consistent with the terms of
Section 9 of this Agreement, notwithstanding any termination of appointment or
resignation of any Special Committee Member that may occur or the dissolution of
the Special Committee. The Company's obligation to indemnify or compensate each
Special Committee Member in the manner set forth in this Agreement shall apply
to any new or replacement Special Committee Member(s) that may be appointed to
the Special Committee from time to time, unless and except to the extent that
any express modifications or exceptions to this Agreement with respect to such
new or replacement Special Committee Member(s) are set forth in a written
instrument duly executed by the Company and the relevant Special Committee
Member(s).
2. COMPENSATION AND EXPENSE REIMBURSEMENT. As compensation for
their services as Special Committee Members, each Special Committee Member other
than the Chairman of the Special Committee shall receive from the Company a fee
in the amount of thirty-five thousand dollars ($35,000), and the Chairman of the
Special Committee shall receive from the Company a fee in the amount of fifty
thousand dollars ($50,000). Such fees shall be payable to each Special Committee
Member upon the execution of this Agreement by the parties hereto. The
compensation arrangements contained in this Section 2 shall be subject to
further review, from time to time, by the Board of Directors of the Company to
determine whether any supplemental fees shall be paid to the Special Committee
Members. In addition to the foregoing, each Special Committee Member shall be
reimbursed by the
2
Company for his or her out-of-pocket travel and other reasonable expenses
(including reasonable attorneys' fees and expenses) incurred in connection with
his or her service on the Special Committee, in a manner consistent with the
Company's policies and procedures pertaining to the reimbursement of the
expenses incurred by members of its Board of Directors.
3. INDEMNITY.
(a) In the event that a Special Committee Member is, or is
threatened to be made, a party to or participant in any Proceeding (as defined
in Section 13(e) of this Agreement), whether such Proceeding is by or in the
right of the Company, any third party or any other person or entity, the Company
hereby agrees to hold harmless and indemnify each Special Committee Member from
and against any and all Expenses (as defined in Section 12(b) of this
Agreement), judgments, penalties, liabilities, losses, claims, damages, fines
and amounts, including but not limited to amounts paid in settlement, incurred
by such Special Committee Member, or incurred on his or her behalf, to the
fullest extent authorized or permitted by applicable law, by the Certificate of
Incorporation of the Company and by the Company's By-Laws, as the foregoing may
be amended, restated or otherwise modified from time to time, and including,
without limitation, any and all Expenses, judgments, penalties, liabilities,
losses, claims, damages, fines and amounts (including but not limited to amounts
paid in settlement) arising out of or relating to the actual or alleged acts,
omissions, negligence or active or passive wrongdoing of such Special Committee
Member. The only limitation that shall exist upon the Company's indemnification
obligations pursuant to this Agreement is that the Company shall not be
obligated to make any indemnity-related payment to a Special Committee Member
that is finally determined (pursuant to the procedures, and subject to the
presumptions, set forth in Sections 6 and 7 hereof) to be unlawful under
Delaware law.
(b) Notwithstanding any other provision of this Agreement to
the contrary, to the extent that a Special Committee Member is a party to and is
successful, on the merits or otherwise, in any Proceeding, he or she shall be
indemnified pursuant to subsection (a) above to the maximum extent permitted by
law. However, in the event that (i) a Special Committee Member is not wholly
successful in a Proceeding but is successful, on the merits or otherwise, as to
one or more but less than all claims, issues or matters in such Proceeding, and
(ii) it is determined that it is unlawful for the Special Committee Member to be
indemnified with respect to such unsuccessful claims, issues or matters, in such
instance the Company shall indemnify such Special Committee Member against all
Expenses incurred by such Special Committee Member, or incurred on his or her
behalf, in connection with each
3
successfully resolved claim, issue or matter. For purposes of this Section and
without limitation, the termination of any claim, issue or matter in a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
success on the merits or otherwise as to such claim, issue or matter.
4. INDEMNIFICATION FOR EXPENSES INCURRED AS A WITNESS.
Notwithstanding any other provision of this Agreement to the contrary, to the
extent that a Special Committee Member is, by reason of his or her service as a
Special Committee Member, a witness in any Proceeding to which such Special
Committee Member is not a party, such Special Committee Member shall be
indemnified for and against all Expenses actually and reasonably incurred by
such Special Committee Member or incurred on his or her behalf in connection
therewith.
5. ADVANCEMENT OF EXPENSES. Notwithstanding any other
provision of this Agreement to the contrary, the Company shall advance or
directly pay all Expenses incurred by or on behalf of a Special Committee Member
in connection with any Proceeding relevant hereto, within thirty (30) days after
the receipt by the Company of a statement or statements from such Special
Committee Member requesting such advances or payments from time to time, whether
prior to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by or on behalf of,
or charged to the Special Committee Member. In connection herewith, each Special
Committee Member hereby agrees and undertakes to repay any Expenses advanced or
paid hereunder if ultimately it is determined that any such Special Committee
Member is not entitled to be indemnified or reimbursed for such Expenses in any
given instance. The foregoing undertaking to repay such Expenses by the Special
Committee Members shall be unsecured and interest-free. Notwithstanding the
foregoing, the obligation of the Company to advance Expenses pursuant to this
Section 5 shall be subject to the condition that, if, when and to the extent
that the Company reasonably determines that a Special Committee Member would not
be permitted to be indemnified under applicable law (subject to the terms and
conditions of Section 6 of this Agreement), the Company shall be entitled to
reimbursement, within thirty (30) days of such determination, by such Special
Committee Member for all such amounts theretofore paid; PROVIDED, HOWEVER, that
if such Special Committee Member has commenced or thereafter commences legal
proceedings in a court of competent jurisdiction to secure a determination that
he should be indemnified under applicable law, any determination made by the
Company that such Special Committee Member is not entitled to indemnification
under applicable law in a given instance shall not be binding, and such Special
Committee Member shall not be required to reimburse the Company for any advance
or payment of Expenses until a final judicial determination is made with
4
respect thereto (as to which all rights of appeal therefrom have been exhausted
or have lapsed).
6. PROCEDURES AND PRESUMPTIONS FOR DETERMINATION OF
ENTITLEMENT TO INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. It is the intent of
this Agreement to secure for each Special Committee Member rights of indemnity
and advancement of Expenses that are as favorable and as broad as permitted
under the law and public policy of the State of Delaware. Accordingly, the
parties hereby agree that the following procedures and presumptions shall apply
in the event of any question or dispute as to whether a Special Committee Member
is entitled to indemnification or advancement of Expenses under this Agreement:
(a) To obtain indemnification or any advancement of Expenses
by the Company under this Agreement, a Special Committee Member shall submit to
the Company a written request, including therein or therewith such documentation
and information as is reasonably available to such Special Committee Member and
as may be reasonably necessary to enable the Company to determine whether and to
what extent a Special Committee Member is entitled to indemnification or
advancement of Expenses. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification or advancement of Expenses, advise
the Board of Directors in writing that such Special Committee Member has
requested indemnification, advancement of Expenses or contribution. A Special
Committee Member's failure to strictly comply with the procedural requirements
set forth in this Section 6, however, shall not relieve the Company of any
obligation it may have to indemnify or advance hereunder and shall not alter or
waive an presumptions for determination of entitlement to indemnification or
advancement of Expenses contained herein.
(b) Upon each submission of a written request by a Special
Committee Member for indemnification pursuant to subsection (a) above, a
determination with respect to such Special Committee Member's entitlement
thereto shall be made in accordance with one of the following methods, the
selection of which method shall be at the discretion of the relevant Special
Committee Member: (i) by a majority vote of the Disinterested Directors (as
defined in Section 12(a) hereof), even if such Disinterested Directors
constitute less than a quorum of the Board of Directors of the Company; (ii) by
Independent Counsel (as defined in Section 12(c) of this Agreement) in a written
opinion, pursuant and subject to the procedures and selection processes set
forth in subsection (c) below; or (iii) by a majority vote of the Company's
stockholders, pursuant and subject to the procedures set forth in subsection (g)
below. Upon each submission of a written request by a Special Committee
5
Member for advancement of Expenses by the Company pursuant to subsection (a)
above, such advancement of Expenses shall be made by the Company in accordance
with the provisions of Section 5 hereof, PROVIDED, that in the event that the
Company fails to advance Expenses in accordance therewith, the Special Committee
Member shall be entitled to an adjudication thereof pursuant to Section 7(a) of
this Agreement and PROVIDED, FURTHER, that the presumptions contained in this
Section 6 shall apply to the resolution, adjudication or settlement of any
disputes relating to advancement of Expenses hereunder.
(c) If a Special Committee Member elects for the
determination of entitlement to indemnification to be made by Independent
Counsel pursuant to subsection (b) above, the Independent Counsel shall be
selected as provided in this subsection (c). The Independent Counsel shall be
selected by the Special Committee Member (unless such Special Committee Member
requests that the selection be made by the Board of Directors). Such Special
Committee Member or the Board of Directors of the Company, as the case may be,
may, within ten (10) days after the written notice of selection is provided,
deliver to the Company or to the Special Committee Member, as the case may be, a
written objection to such selection; PROVIDED, HOWEVER, that any such objection
may be asserted only on the grounds that the selected Independent Counsel does
not meet the requirements set forth in the definition of "Independent Counsel"
contained in Section 12(c) of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a proper and
timely objection, the counsel so selected shall act as Independent Counsel. If a
written objection is made and substantiated, the selected Independent Counsel
may not serve as Independent Counsel unless and until such objection is
withdrawn or a court of competent jurisdiction has determined that such
objection is without merit. If, within twenty (20) days after the Special
Committee Member's submission of a written request for indemnification pursuant
to subsection (a) above and his or her election to have his or her entitlement
to indemnification determined by Independent Counsel, no Independent Counsel
shall have been selected, or objections to selection have not been resolved,
either the Company or the Special Committee Member may petition the Court of
Chancery of the State of Delaware or any other court of competent jurisdiction
for resolution of any objection made by the Company or such Special Committee
Member to the other's selection of Independent Counsel and/or for the
appointment of an Independent Counsel selected by the court or by such other
person as the court may designate. The Company shall pay any and all Expenses of
such Independent Counsel relating to its performance of services in connection
herewith, and the Company shall pay all Expenses incident to the procedures
contained in this subsection (c), irrespective of the manner in which such
Independent Counsel was selected or appointed.
6
(d) In making a determination with respect to a Special
Committee Member's entitlement to indemnification hereunder, and as available in
the resolution, adjudication or settlement of any disputes relating to
indemnification or advancement hereunder, the person(s) or entity making such
determination or facilitating the resolution, adjudication or settlement of such
dispute shall presume, and by its execution of this Agreement the Company hereby
agrees to presume, that a Special Committee Member is entitled to
indemnification or advancement of Expenses under this Agreement if such Special
Committee Member has submitted a request for indemnification or advancement of
Expenses in accordance with subsection (a) above. Anyone seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence. In addition, if the person(s) or entity making a
determination pursuant to subsection (b) above shall determine that a Special
Committee Member is not entitled to indemnification hereunder, such
determination shall not create a presumption against the Special Committee
Member's entitlement to indemnification in any later action, suit or proceeding
initiated by such Special Committee Member to enforce his or her rights under
this Agreement.
(e) A Special Committee Member shall be deemed to have acted
in good faith if such Special Committee Member's action is based on such Special
Committee's good faith reliance upon the records or books of account of the
Company or any other person, enterprise or entity, including financial
statements, or on information supplied to such Special Committee Member by the
officers of the Company or such other person, enterprise or entity in the course
of their duties, or on the advice of legal counsel for the Company, the Special
Committee or the Special Committee Member or on information or records given or
reports made to the Company or the Special Committee by an independent certified
public accountant, by a financial advisor or by an appraiser or other expert
selected by the Company or the Special Committee. In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent or employee
of the Company or any other person, enterprise or entity shall not be imputed to
a Special Committee Member for purposes of determining such Special Committee
Member's right to indemnification or advancement of Expenses under this
Agreement. Irrespective of whether the foregoing provisions of this subsection
(e) are satisfied, it shall be presumed in any event that each Special Committee
Member has at all times acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company. Anyone
seeking to overcome this presumption shall have the burden of proof and the
burden of persuasion by clear and convincing evidence.
(f) The Company acknowledges that a settlement or other
disposition of a Proceeding short of final judgment may be desirable if it
permits a
7
party to avoid expense, delay, distraction, disruption and uncertainty. In the
event that any Proceeding to which a Special Committee Member is a party is
resolved in any manner other than by adverse judgment against such Special
Committee Member (including, without limitation, settlement of such Proceeding
with or without payment of money or other consideration), it shall not be
presumed that such Special Committee Member has not been successful on the
merits or otherwise in such Proceeding.
(g) Each Special Committee Member shall reasonably cooperate
with the person(s) or entity making the determination regarding such Special
Committee Member's entitlement to indemnification, including providing to such
person(s) or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to such Special Committee Member and reasonably
necessary to such determination. Any Expenses incurred by a Special Committee
Member in so cooperating with the person(s) or entity making such determination
shall be borne by the Company (irrespective of the determination as to such
Special Committee Member's entitlement to indemnification), and the Company
hereby agrees to indemnify and hold harmless each Special Committee Member
therefrom.
7. REMEDIES.
(a) In the event that: (i) a determination is made pursuant
to Section 6 of this Agreement that a Special Committee Member is not entitled
to indemnification under this Agreement, (ii) advancement of Expenses is not
timely made pursuant to Section 5 of this Agreement, (iii) no determination of
entitlement to indemnification is made pursuant to Section 6 of this Agreement
within one hundred twenty (120) days after receipt by the Company of the request
for indemnification, (iv) payment of indemnification is not made within ten (10)
days after a determination has been made that a Special Committee Member is
entitled to indemnification pursuant to Section 6 of this Agreement, or (v) the
Company has not complied with any other term of this Agreement intended for the
benefit of a Special Committee Member; then, in any such event, the relevant
Special Committee Member shall be entitled to an adjudication of the foregoing
in an appropriate court of the State of Delaware, or in any other court of
competent jurisdiction. The Company shall not oppose a Special Committee
Member's right to seek any such adjudication.
(b) In the event that a determination shall have been made
pursuant to Section 6 of this Agreement that a Special Committee Member is not
entitled to indemnification, any judicial proceeding commenced pursuant to this
8
Section 7 shall be conducted in all respects as a de novo trial, on the merits,
and such Special Committee Member shall not be prejudiced by reason of that
adverse determination.
(c) If a determination shall have been made pursuant to
Section 6 of this Agreement that a Special Committee Member is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding commenced pursuant to this Section 7, absent a prohibition
of such indemnification under applicable law.
(d) In the event that a Special Committee Member, pursuant
to this Section 7, seeks a judicial adjudication of his or her rights under, or
to recover damages for breach of, this Agreement, or to recover under any
directors' and officers' liability insurance policies maintained by the Company,
the Company shall pay on his or her behalf, in advance, any and all Expenses
incurred by him or her in such judicial adjudication, regardless of whether such
Special Committee Member ultimately is determined to be entitled to such
indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 7 that the procedures and
presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court that the Company is bound by all the provisions of
this Agreement.
8. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.
(a) The rights of indemnification set forth in this
Agreement shall not be deemed exclusive of any other rights to which a Special
Committee Member may at any time be entitled under applicable law, the
Certificate of Incorporation of the Company, or the By-Laws of the Company. No
amendment, alteration or repeal of this Agreement or any provision hereof shall
limit or restrict any right of any Special Committee Member under this Agreement
in respect of any action taken or omitted by such Special Committee Member in
his or her capacity as a Special Committee Member prior to such amendment,
alteration or repeal. To the extent that a change in the law, whether by statute
or judicial decision, permits greater indemnification or advancement rights than
currently are afforded under the Company's Certificate of Incorporation, the
Company's By-Laws and this Agreement, it is the intent of the parties hereto
that such Special Committee Member shall enjoy
9
by this Agreement the greater benefits so afforded by such change. No right or
remedy conferred herein is intended to be exclusive of any other right or remedy
of any Special Committee Member, and every other right or remedy shall be
cumulative and in addition to every other right or remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder shall not prevent the concurrent
assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, agents or fiduciaries of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which such person serves at the request of the Company, each Special Committee
Member shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage available for any such
director, officer, employee, agent or fiduciary under such policy or policies.
(c) In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of a Special Committee Member, who shall execute all papers required
and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
(d) The Company shall not be liable under this Agreement to
make any payment of amounts otherwise indemnifiable hereunder if and to the
extent that a Special Committee Member otherwise and actually has received such
payment under any insurance policy, contract, agreement or otherwise.
9. DURATION OF AGREEMENT. All agreements and obligations of
the Company contained herein shall continue with respect to each Special
Committee Member during the period in which such Special Committee Member serves
as a member of the Special Committee and shall continue in perpetuity
thereafter, whether or not a Special Committee Member is acting or serving in
such capacity at the time any Expense, judgment, penalty, liability, loss,
claim, damage, fine or amount is incurred for which indemnification or
advancement can be provided under this Agreement. This Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs,
10
executors and personal and legal representatives. This Agreement shall continue
in effect irrespective of whether a Special Committee Member continues to serve
as a member of the Special Committee or whether a Special Committee Member's
appointment to the Special Committee is terminated for any reason.
10. REVOCATION. If the Board of Directors in its sole
discretion (without the vote of the Special Committee Members) determines to
provide any security to a Special Committee Member for the Company's obligations
hereunder, any such security, once provided to a Special Committee Member, may
not be revoked or released without the prior written consent of such Special
Committee Member.
11. ENFORCEMENT; ENTIRE AGREEMENT.
(a) The Company expressly confirms and agrees that it has
entered into this Agreement and has assumed the obligations imposed on it hereby
in order to induce the Special Committee Member to serve as a member of the
Special Committee, and the Company acknowledges that such Special Committee
Member is relying upon this Agreement in agreeing to serve as a member of the
Special Committee.
(b) Subject to Section 8 hereof, this Agreement constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings, oral,
written and implied, between the parties hereto with respect to the subject
matter hereof.
12. DEFINITIONS. For purposes of this Agreement:
(a) "Disinterested Director" means a member of the Board of
Directors of the Company who is not and was not a party to the Proceeding in
respect of which indemnification is sought by a Special Committee Member.
(b) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating, or being or preparing to
be a witness in any Proceeding or other proceeding of the type described in the
definition of "Proceeding" set forth below.
11
(c) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent: (i)
the Company or any Special Committee Member in any matter (other than with
respect to matters concerning the rights of any Special Committee Member under
this Agreement), or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing, the term
"Independent Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or any Special Committee Member in
an action to determine such Special Committee Member's rights under this
Agreement.
(d) "Proceeding" includes any actual, threatened, pending or
completed action, suit, litigation, claim, arbitration, mediation, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened, pending or completed proceeding, whether brought
by or in the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which a Special Committee Member was, is or
will be involved as a party or otherwise, (i) by reason of the fact that such
Special Committee Member is or was a member of the Special Committee, or (ii) by
reason of any action taken by him or her or of any inaction on his or her part
while acting as a member of the Special Committee; in each case whether or not
he or she is acting or serving in such capacity at the time any Expense,
judgment, penalty, liability, loss, claim, damage, fine or other amount for
which indemnification can be provided under this Agreement is incurred or
imposed.
13. SEVERABILITY. If any provision or provisions of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
void, illegal or otherwise unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable that is not itself invalid, illegal or unenforceable) shall not be
affected or impaired in any way thereby and shall remain enforceable to the
fullest extent permitted by law; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
12
14. MODIFICATION AND WAIVER. No supplement, modification,
waiver, termination or amendment of all or any portion of this Agreement shall
be binding unless expressed in a written instrument executed by the relevant
parties hereto. No waiver of any term or provision of this Agreement shall be
deemed or shall constitute a waiver of any other terms or provisions hereof
(whether or not similar), and any such waiver shall be effective only in the
specific instance, for the specific duration and for the express purpose for
which it is given. Any waiver or failure to insist upon strict compliance with
any term or provision of this Agreement shall not operate as a waiver of, or an
estoppel with respect to, any subsequent or other failure to comply.
15. NOTICE OF SERVICE BY SPECIAL COMMITTEE MEMBERS. Each
Special Committee Member agrees promptly to notify the Company in writing upon
being served with any summons, citation, subpoena, complaint, indictment or
other document relating to any Proceeding or matter which may be subject to
indemnification covered hereunder. The failure to so notify the Company shall
not relieve the Company of any obligation which it may have to such Special
Committee Member under this Agreement or otherwise.
16. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered to and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) mailed by certified
or registered mail with postage prepaid, on the third business day after the
date on which it is so mailed, or (iii) sent by telecopy or facsimile, the
successful transmission and receipt of which is confirmed in a written report;
in each instance to the addresses and/or facsimile or telecopy numbers set forth
below:
(a) If to Mr. Kristol, to:
Howard G. Kristol
15 Murray Hill Road
Scarsdale, New York 10583
Facsimile: (914) 725-6454
with a copy (which shall not constitute effective
notice) to:
Stephen E. Jacobs, Esq.
Weil, Gotshal & Manges LLP
13
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8007
(b) If to Mr. Elson, to:
Charles M. Elson
3315 Mullen Avenue
Tampa, Florida 33609
with a copy (which shall not constitute effective
notice) to:
Stephen E. Jacobs, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8007
and
Michael Jamieson, Esq.
Holland & Knight LLP
2000 Nations Bank Plaza
400 North Ashley Drive
Tampa, FL 33602
(c) If to Mr. Langerman, to:
Peter A. Langerman
11 Arlene Court
Short Hills, New Jersey 07078
with a copy (which shall not constitute effective
notice) to:
Stephen E. Jacobs, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8007
14
(d) If to Ms. Whittlesey, to:
Faith Whittlesey
406 Broadway
Cambridge, Massachusetts 02139
with a copy (which shall not constitute effective
notice) to:
Stephen F. Jacobs, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8007
(e) If to the Company, to:
Sunbeam Corporation
1615 S. Congress Avenue, Suite 200
Delray Beach, Florida 33445
Attn: General Counsel
with a copy to
Blaine V. Fogg, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Facsimile: (212) 735-2000;
or to such other address or facsimile or telecopy number as may have been
furnished to the Special Committee Members by the Company or to the Company by a
Special Committee Member, as the case may be.
17. IDENTICAL COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
agreement.
15
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
18. HEADINGS. The headings of the paragraphs of this Agreement
are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction or interpretation thereof.
19. GOVERNING LAW. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
16
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SUNBEAM CORPORATION
By: /s/ JANET KELLY
--------------------------------------
Title:
______________________________________
Howard G. Kristol
______________________________________
Charles M. Elson
______________________________________
Peter A. Langerman
______________________________________
Faith Whittlesey
17