EXHIBIT 10.9
PROMISSORY NOTE
$7,650,000.00
November 30, 1998
FOR VALUE RECEIVED, E. V. GOINGS (the "Maker") promises to pay to
the order of TUPPERWARE CORPORATION, a Delaware corporation (which
together with any successor, assignee or endorsee is hereinafter
referred to as the "Holder"), at 14901 South Orange Blossom Trail,
Orlando, Florida 32837, or at such other place as the Holder may
designate in writing, in lawful money of the United States of
America, the principal sum of Seven Million, Six Hundred and Fifty
Thousand and No/100 Dollars ($7,650,000.00), as described below
and in accordance with the following terms and provisions:
1. Non-Interest Bearing. No interest shall be payable on
the outstanding principal balance of this Note.
2. Security and Purpose of Loan. The Maker's payment and
performance of all the terms and conditions of this Note are
secured by a stock pledge agreement of even date herewith executed
by the Maker and the Holder (the "Pledge Agreement"). The loan
evidenced by this Note is made to assist the Maker in the purchase
of 400,000 shares of the common stock (the "Stock") of Tupperware
Corporation and for no other purpose.
3. Principal Payments. Payments against the principal of this
Note will be made in amounts equal to ten percent (10%) of the
gross amount of each annual bonus award payment payable by the
Holder to the Maker, and shall be made by payroll deduction. Any
such amounts paid by the Maker shall be refunded by the Holder in
the event that the Maker surrenders or forfeits the Stock as
contemplated by this Note, together with interest thereon from the
time of payment by payroll deduction at the prime rate in effect
at Chase Manhattan Bank at the time of refund. The entire
remaining outstanding principal balance will be due and payable on
November 12, 2006. At such date, the Maker shall have the option
of repaying such outstanding balance (a) in cash, (b) by tendering
an amount of the common stock of Tupperware Corporation equal in
value to the outstanding balance if the per share price of such
common stock then equals or exceeds $19.125 (adjusted for any
stock splits or reverse splits), or (c) by tendering any remaining
amount of the Stock subject to the lien of the Pledge Agreement if
the per share price of the common stock of Tupperware Corporation
is then less than $19.125 (adjusted for any stock splits or
reverse splits).
4. Prepayment. This Note may be prepaid in whole or in part
at any time on or after November 12, 2002, without penalty. In
addition, partial prepayments of principal will be made by the
Maker in accordance with Section 3 of this Note.
5. Accelerated Maturity: The entire outstanding
principal balance of this Note will become immediately due and
payable without notice on (1) the date of any voluntary or
involuntary termination of the Maker's employment with the Holder,
subject to subsection (b) below, and subject to subsections (c)
and (d) below respectively, in the case of (i) death of the Maker,
or (ii) the total disability of the Maker; or (2) the date on
which a Change of Control occurs, as that term is defined by that
certain Change of Control Employment Agreement between the Maker
and the Holder dated May 31, 1996, or any successor agreement;
In the event of a voluntary or involuntary termination of the
Maker's employment as contemplated in clause 5 (a) above prior to
November 12, 2002 (or a termination for "cause" at any time), all
right, title and ownership to the Collateral shall transfer to the
Holder in full satisfaction of the principal amount of this Note,
and the Maker shall not be entitled to receive from the Holder any
amount representing an excess in the value of the Collateral over
the then-outstanding balance of the loan amount under this Note.
For purposes of this Note, "cause" shall mean an act of
dishonesty, a conviction of a felony, a willful and deliberate
failure of the Maker to perform his duties to the Holder, or any
other events as determined by the Compensation and Directors
Committee of the Board of Directors of the Holder. In the event
of a voluntary or involuntary termination of the Maker's
employment as contemplated by clause 5(a) above on or after
November 12, 2002 (except for a termination for "cause"), the
Maker shall, at his option, pay the then-outstanding principal
amount of the Note in cash or surrender all his right, title and
ownership in and to the Stock in full satisfaction of the Note.
In the event of the death of the Maker, provided the debt
evidenced by this Note is assumed in writing by all heirs,
beneficiaries and other persons or entities succeeding to the
Maker's ownership interest in all or any portion of the
"Collateral" (as defined in the Pledge Agreement) within ninety
(90) days after the Maker's death, then the entire outstanding
balance of this Note will become due and payable without notice on
the earlier of (i) November 12, 2006, or (ii) the first
anniversary of the Maker's death. Upon the debt evidenced by the
Note becoming due and payable pursuant to this subsection, the
then-obligor under the Note shall have the same repayment
obligations as if the Note was payable on November 12, 2006
pursuant to Section 3 of this Note.
In the event of involuntary termination of the Maker's employment
with the Holder as a consequence of the Maker's total disability,
then the entire outstanding balance of this Note will become due
and payable without notice on the earlier of (i) November 12,
2006, or (ii) the third anniversary of the date of termination for
reasons of total disability. Upon the debt evidenced by the Note
becoming due and payable pursuant to this subsection, the Maker
under the Note shall have the same repayment obligations as if the
Note was payable on November 12, 2006 pursuant to Section 3 of
this Note.
In the event of a Change of Control as defined in clause 5(a)(2)
above, all then-outstanding indebtedness of the Maker under this
Note shall be deemed forgiven and the lien upon the Stock then
subject to the Pledge Agreement shall be deemed automatically
released.
6. Late Charge. The Maker will pay to the Holder a late
charge equal to five percent (5%) of any amount due under this
Note but not received by the Holder within fifteen (15) days after
the due date. The Maker agrees that the late charge will be
collected not as a penalty, but as compensation to the Holder for
the costs of collecting the late payment. This provision will not
be construed to extend the due date for any amount required to be
paid under this Note. The Holder will have no obligation to
accept any late payment not accompanied by the required late
charge.
7. Waiver; Extensions. Presentment, demand, notice of
dishonor and all other exemptions provided the Maker are waived.
No delay, failure or omission by the Holder in exercising any of
its rights hereunder or at law or in equity (including, without
limitation, the right of acceleration) will be construed as a
novation of this Note or will operate as a waiver or prevent the
subsequent exercise of any or all of such rights. Acceptance by
the Holder of any sum payable under this Note, whether before, on
or after the due date of such payment, will not be a waiver of
the Holder's right to require prompt payment when due of all other
sums payable under this Note or to exercise any of the Holder's
rights, powers or remedies under this Note. No extension of the
time for any payment under this Note will operate to release,
discharge, modify or otherwise affect the liability of the Maker
unless the Holder agrees in writing.
8. Collection Costs, Documentary Stamp Tax and Other
Expenses. The Maker will pay all costs, fees and expenses
(including court costs and attorneys' fees) incurred by the Holder
in collecting or attempting to collect any amount that becomes due
under this Note or in seeking legal advice with respect to a
default under this Note. In addition, the Maker will pay all
costs and expenses arising out of the execution and delivery of
this Note, including but not limited to all documentary stamp
taxes and other taxes that may be charged or imposed by local,
state or federal governments.
9. Governing Law. This Agreement is governed by Florida Law.
10. Notices. All notices, requests, demands and other
communications with respect to this Note will be in writing and
will be delivered by hand, sent prepaid by air courier or sent by
the United States mail, certified, postage prepaid, return receipt
requested, at the addresses designated below:
If to Holder: Tupperware Corporation
Attn: Senior Vice President, Human Resources
14901 South Orange Blossom Trail
Orlando, Florida 32837
If to Maker: E. V. Goings
5163 Fairway Oaks Drive
Windermere, Florida 34786
Any notice, request, demand or other communication delivered
or sent in such manner will be deemed given or made when actually
received by the intended recipient. Rejection or other refusal to
accept, or the inability to deliver because of a changed address
of which no notice was given, will be deemed to be receipt of the
notice, request, demand or other communication sent. The Maker or
the Holder may change its address by notifying the other party of
the new address in any manner permitted by this section.
11. Amendments Only in Writing. This Note or any provision
hereof may be waived, changed, modified or discharged only by an
agreement in writing signed by the Maker and the Holder.
12. Time of Essence. TIME IS OF THE ESSENCE with respect to
the performance by the Maker of each of its obligations hereunder.
13. Authorization for Payroll Deduction. The Maker authorizes
the Holder to deduct amounts due under this Note from payroll
installments payable by the Holder to the Maker. The Maker agrees
that all mandatory payments due under this Note will be made by
way of payroll deduction for so long as the Maker remains on the
Holder's active payroll, and that no additional authorization,
consent or notice will be required for the Holder to commence or
continue payroll deduction for these purposes.
14. Right of Set-Off. The Maker expressly agrees that, if a
default or accelerated maturity occurs pursuant to this Note, the
Holder has a right of set-off to satisfy the debt evidenced by
this Note. The right of set-off will entitle the Holder (a) to
withhold any payments owing from the Holder to the Maker,
including but not limited to, salary and bonus payments, pension
and retirement benefits, and expense reimbursements, and (b) to
draw upon any account maintained by the Holder or its agent for
the benefit of the Maker or in the Maker's name. The Holder will
provide written notice to the Maker prior to exercising this right
of set-off.
IN WITNESS WHEREOF, the Maker has executed this Note in the County
of Osceola.
_______________________________
Name: E. V. Goings
COUNTY OF OSCEOLA
STATE OF FLORIDA
This instrument was executed before me and in my presence this
30th day of NOVEMBER, 1998, in Osceola County, Florida, by E. V.
Goings.
________________________________
Notary Public
My Commission Expires:____________
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of November 30, 1998,
(the "Agreement"), by and between E. V. Goings (the "Pledgor),
Susan Goings (the "Pledgor's Spouse") and Tupperware Corporation,
a Delaware corporation (the "Secured Party"), recites and
provides:
RECITALS
The Pledgor has executed and delivered a promissory note of
even date herewith (the "Note") made by the Pledgor payable to the
order of the Secured Party in the principal amount of
$7,650,000.00. The Pledgor has agreed to pledge and deliver to
the Secured Party as security for the payment of the indebtedness
evidenced by the Note, 400,000 shares of common stock of
Tupperware Corporation, a Delaware corporation, in accordance with
the terms and conditions set forth in this Agreement. The
Pledgor's Spouse has agreed to join in the execution of this
Agreement to release all marital property rights, if any, in and
to the "Collateral" (defined below).
PLEDGE AGREEMENT
NOW, THEREFORE, the parties to this Agreement agree as
follows:
1. Pledge of Collateral. The Pledgor hereby assigns and
delivers to the Secured Party, with appropriate stock powers and
endorsements in blank or other appropriate instruments of
assignment, a certificate or certificates for 400,000 shares of
common stock of Tupperware Corporation. (Such securities, and any
replacements or substitutions thereof, and all accessions thereto,
are referred to in this document as the "Collateral"). All of the
Collateral will be held by the Secured Party subject to the terms
and conditions of this Agreement.
2. Certificates. The Pledgor agrees to deliver promptly to
the Secured Party, with stock powers or endorsements in blank or
other appropriate instruments of assignment, all certificates (if
any) representing stock splits or rights to purchase or subscribe
for additional stock, or other rights, accessions or increments
with respect to any securities constituting a portion of the
Collateral. Such certificates (if any) will be held by the
Secured Party subject to the terms and conditions of this
Agreement.
3. Secured Indebtedness. This pledge of the Collateral
secures all indebtedness of the Pledgor to the Secured Party
evidenced by the Note, including any attorney's fees and other
expenses incurred in the collection of the Note.
4. Satisfaction of Indebtedness. Upon payment of the entire
indebtedness of the Pledgor to the Secured Party evidenced by the
Note, this Agreement will terminate and any remaining Collateral
will be returned and delivered by the Secured Party to the
Pledgor.
5. Reduction of Collateral. On any date subsequent to
November 12, 2002, the Pledgor shall be entitled to reduce the
amount of the Collateral subject to this Agreement, conditioned on
a pro rata payment of the indebtedness evidenced by the Note. In
the event the Pledgor elects to reduce the Collateral, the Pledgor
will notify the Secured Party and simultaneously pay to the
Secured Party an amount (the "Paydown") equal to the principal
then outstanding under the Note times a fraction, the numerator of
which equals the number of shares of common stock by which the
Collateral is to be reduced and the denominator of which equals
the number of shares of common stock comprising the Collateral
prior to reduction. Any mandatory prepayment amounts paid by the
Pledgor to the Secured Party pursuant to Section 3 of the Note,
and not included in the calculation of any earlier Paydown, shall
be credited towards the Paydown. The secured Party will apply the
Paydown against the indebtedness evidenced by the Note and release
to the Pledgor the number of shares of common stock by which the
Collateral is to be reduced.
Except as permitted by this Agreement, the Collateral may not
be reduced or otherwise released prior to the full and final
payment of all indebtedness evidenced by the Note.
6. Pledgor's Representation. The Pledgor represents,
warrants and covenants that he is the lawful owner of all of the
Collateral, free and clear of all liens or claims of any sort
whatsoever, other than the lien established by this Agreement, and
that he will maintain the Collateral free of all such liens or
claims until all indebtedness evidenced by the Note is fully and
finally paid.
7. Further Assurances. The Pledgor covenants and agrees to
execute and deliver or cause to be executed and delivered, and to
do or make or cause to be done or made, upon the request of the
Secured Party, any and all agreements, instruments, acts or
things, supplemental, confirmatory or otherwise, as may reasonably
be required by the Secured Party for the purpose of, or in
connection with, perfecting and completing the pledge of the
Collateral in accordance with the terms and conditions of this
Agreement.
8. Dividends and Voting Rights. So long as there exists no
event of default under this Agreement or under the Note, subject
to the provisions of paragraphs 2 and 9 hereof, the Pledgor will
have and enjoy all rights attaching to the Collateral, including
the right to receive all dividends and the right to exercise any
and all voting rights.
9. Default and Remedies. In the event of any default by
the Pledgor in the payment of any sum under this Agreement or any
indebtedness of the Pledgor evidenced by the Note, which default
continues for a period of five (5) days, or any other default
under the Note or under this Agreement which continues for a
period of fifteen (15) days after written notice given by the
Secured Party to the Pledgor in accordance with the provisions of
the Note, all right, title and ownership in and to the Collateral
will transfer ipso facto to the Secured Party, at its option. The
transfer of the Collateral to the Secured Party will include all
rights attaching to the Collateral, including the right to receive
all dividends and the right to exercise any and all voting rights.
Such transfer and delivery of the Collateral will be accepted by
the Secured Party in full satisfaction of the outstanding
indebtedness evidenced by the Note.
10. Expenses. The Pledgor will pay any and all expenses
related to the execution of this Agreement and pledge of the
Collateral, including any taxes or assessments imposed by local,
state or federal governments. The Pledgor will also pay all costs
of collection and enforcement of this Agreement and the Note
(including reasonable attorneys' fees) in the event of default or
failure of the Pledgor to fulfill any term, covenant or condition
under this Agreement or the Note. Any other expenses incurred in
connection with this Agreement or the pledge of the Collateral
hereunder will be borne by the Secured Party and will not be
charged against or paid from the Collateral.
11. Binding Agreement; Governing Law. This Pledge Agreement
will bind the parties hereto and their respective heirs, personal
representatives, successors and assigns. This Agreement will be
governed by Florida Law.
12. Joinder of Pledgor's Spouse. The Pledgor's Spouse joins
in the execution of this Agreement to evidence her consent to the
pledge of the Collateral by the Pledgor, and to release any and
all marital rights that may exist in and to the Collateral.
IN WITNESS WHEREOF, the Pledgor, the Pledgor's Spouse and the
Secured Party have executed or caused this Pledge Agreement to be
executed in their names as of the date first above written.
PLEDGOR PLEDGOR'S SPOUSE
_______________________ ____________________________
Name: E. V. GOINGS Name: SUSAN GOINGS
SECURED PARTY
TUPPERWARE CORPORATION
By:_____________________
Title: ___________________
COUNTY OF _____________
STATE OF _______________
This instrument was executed before me and in my presence
this 30th day of November, 1998, in Osceola County, Florida.
______________________________
Notary Public
My Commission Expires:__________
November 30, 1998
Mr. E. V. Goings
Chairman & Chief Executive Officer
Tupperware Corporation
14901 South Orange Blossom Trail
Orlando, Florida 32837
Dear Mr. Goings:
This letter agreement is to memorialize an arrangement between you
and Tupperware Corporation (the "Corporation") in which the
Corporation agrees to advance funds to you to enable your
purchase of 400,000 shares of the common stock (the "Stock") of
the Corporation. The intent of this transaction is to serve as an
incentive for your retention as Chairman and Chief Executive
Officer of the Corporation and to increase the operating results
of the Corporation, as well as increasing an identity of your
interests with those of the Corporation's shareholders.
In connection with this transaction, you will execute and deliver
the promissory note and the stock pledge agreement in the form of
Exhibits A and B, respectively, attached hereto and forming a part
of this agreement. The Corporation shall pay the cost of any
brokerage fees incurred in acquiring the stock. The amount of the
loan set forth in Exhibit A shall be $7,650,000. The Corporation
shall provide you with a gross-up at your marginal Federal income
tax rate for (a) imputed income from the actual cost of acquiring
the stock which exceeds $7,650,000, (b) imputed income from the
brokerage fees for the acquisition of the Stock, and (c) deemed
interested on the amount of the loan, if required to offset any
taxable income to you.
In the event of a Change of Control of the Corporation or any
successor entity to the Corporation, as defined in the Change of
Control Employment Agreement between you and the Corporation dated
May 31, 1996, or any successor agreement, the Corporation shall
provide a gross-up to you for any excise tax imposed by Section
4999 of the Internal Revenue Code, or any successor provisions.
All other terms and conditions will be as set forth in the
aforementioned promissory note and stock pledge agreement.
Mr. E. V. Goings
November 30, 1998
Page Two
If the foregoing accurately sets forth the terms and conditions of
the transaction, and intentions of the Board of Directors of the
Corporation with respect thereto, please indicate your acceptance
by signing in the space provided below for the purpose and
returning a fully executed letter agreement to me.
TUPPERWARE CORPORATION
By:________________________
Carol A. Kiryluk
Senior Vice President
Human Resources
Accepted and Agreed To
This 30th day of November, 1998.
By:________________________
E. V. Goings