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EXHIBIT 10.12
EMPLOYMENT AGREEMENT
Between
SALTON/MAXIM HOUSEWARES, INC.
And
▇▇▇▇▇ ▇. ▇▇▇▇▇
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS................................................... 1
1.1 "Accrued Annual Base Salary".................................. 1
1.2 "Accrued Annual Incentive Bonus".............................. 1
1.3 "Affiliate"................................................... 1
1.4 "AFR Rate".................................................... 1
1.5 "Anniversary Date"............................................ 1
1.6 "Annual Base Salary".......................................... 1
1.7 "Annual Incentive Bonus"...................................... 1
1.8 "Beneficiary"................................................. 1
1.9 "Board"....................................................... 2
1.10 "Cause"....................................................... 2
1.11 "Change of Control"........................................... 2
1.12 "Code"........................................................ 3
1.13 "Common Stock"................................................ 3
1.14 "Commencement Date"........................................... 3
1.15 "Company"..................................................... 3
1.16 "Compensation Committee"...................................... 3
1.17 "Contract Term"............................................... 3
1.18 "Date of Termination"......................................... 3
1.19 "Disability".................................................. 3
1.20 "Excise Tax".................................................. 4
1.21 "Executive"................................................... 4
1.22 "Fair Market Value"........................................... 4
1.23 "Fiscal Year"................................................. 4
1.24 "Full Retirement Benefits".................................... 4
1.25 "Good Reason"................................................. 4
1.26 "Incumbent Directors"......................................... 5
1.27 "Initial Base Salary.......................................... 5
1.28 "Maximum Goals"............................................... 5
1.29 "Maximum Bonus"............................................... 5
1.30 "Merger"...................................................... 5
1.31 "1934 Act".................................................... 5
1.32 "Notice of Consideration"..................................... 5
1.33 "Performance Period".......................................... 6
1.34 "Permitted Transferee"........................................ 6
1.35 "Person"...................................................... 6
1.36 "Prorata Annual Incentive Bonus".............................. 6
1.37 "Prorata Retirement Benefits"................................. 6
1.38 "Stock Option"................................................ 6
1.39 "Stock Option Term"........................................... 6
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1.40 "Subsequent Base Salary"........................................ 6
1.41 "Subsidiary".................................................... 6
1.42 "Target Bonus".................................................. 6
1.43 "Target Goals".................................................. 6
1.44 "Taxes"......................................................... 7
1.45 "Tax Gross-Up Payment".......................................... 7
1.46 "Termination of Employment"..................................... 7
1.47 "Termination of Employment Without Cause"....................... 7
1.48 "Threshold Bonus"............................................... 7
1.49 "Threshold Goals"............................................... 7
1.50 "Voting Securities"............................................. 7
ARTICLE II. DUTIES......................................................... 7
2.1 Duties.......................................................... 7
2.2 Other Activities................................................ 7
ARTICLE III. TERM OF AGREEMENT............................................. 8
3.1 Term............................................................ 8
ARTICLE IV. COMPENSATION................................................... 8
4.1 Salary.......................................................... 8
4.2 Bonus........................................................... 8
ARTICLE V. STOCK OPTION GRANT.............................................. 9
5.1 Grant of Stock Options.......................................... 9
ARTICLE VI. OTHER BENEFITS................................................. 10
6.1 Incentive, Savings and Retirement Plans......................... 10
6.2 Welfare Benefits................................................ 10
6.3 Fringe Benefits................................................. 10
6.4 Vacation........................................................ 10
6.5 Expenses........................................................ 10
6.6 Office and Support Staff........................................ 10
6.7 Tax Gross-Up Payment............................................ 11
ARTICLE VII. TERMINATION BENEFITS.......................................... 11
7.1 Termination of Employment for Cause or Other Than for Good
Reason.......................................................... 11
7.2 Termination of Employment for Death or Disability............... 12
7.3 Termination of Employment By The Company Without Cause Or By the
Executive for Good Reason....................................... 12
7.4 Termination Benefits upon a Change of Control................... 13
7.5 Other Termination Benefits...................................... 13
ARTICLE VIII. RESTRICTIVE COVENANTS........................................ 13
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8.1 Non-Solicitation of Employees; Confidentiality; Non-Competition.. 13
8.2 Injunction....................................................... 13
ARTICLE IX. MISCELLANEOUS................................................... 14
9.1 Full Settlement.................................................. 14
9.2 Enforcement...................................................... 14
9.3 Assignment, Successors........................................... 15
9.4 Beneficiary...................................................... 15
9.5 Nonalienation of Benefits........................................ 15
9.6 Severability..................................................... 15
9.7 Amendment and Waiver............................................. 15
9.8 Notices.......................................................... 15
9.9 Counterpart Originals............................................ 16
9.10 Entire Agreement................................................. 16
9.11 Effect on Other Agreements....................................... 16
9.12 Applicable Law................................................... 16
9.13 Survival of Executive's Rights................................... 16
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, effective as of December 19, 1997, is made by and between
Salton/Maxim Housewares, Inc., a Delaware corporation (hereinafter the
"Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive"), a resident of the State of
Illinois; and
WHEREAS, the Company desires to obtain the services of the Executive and
Executive is willing to render such services, in accordance with the terms
herein set forth; and
NOW, THEREFORE, in consideration of the mutual undertakings of the parties
hereto, the Company and the Executive agree as follows:
ARTICLE I.
DEFINITIONS
1.1 "Accrued Annual Base Salary" means that portion of the Executive's
Annual Base Salary which is accrued but unpaid as of the Date of Termination.
1.2 "Accrued Annual Incentive Bonus" means the amount of any Annual
Incentive Bonus earned with respect to the calendar year ending prior to the
Date of Termination but which is unpaid as of the Date of Termination.
1.3 "Affiliate" means any corporation or other entity which directly or
through intervening entities owns more than thirty five percent (35%) of the
combined power or value of all shares of stock of a corporation or more than
thirty five percent (35%) of the capital and profits interest of an
unincorporated entity, and any corporation or other entity so owned by an
Affiliate.
1.4 "AFR Rate" means the applicable federal interest rate determined in
accordance with Section 1274 of the Code.
1.5 "Anniversary Date" means any annual anniversary of the Commencement
Date.
1.6 "Annual Base Salary" means (i) the Initial Base Salary from December
19, 1997 through and including June 30, 1998, and (ii) the Subsequent Base
Salary from July 1, 1998 through the Contract Term; provided, however, that the
term Annual Base Salary as used in this Agreement shall refer to the Subsequent
Base Salary as increased pursuant to the terms of Section 4.1 hereof.
1.7 "Annual Incentive Bonus" has the meaning specified in Section 4.2 of
this Agreement.
1.8 "Beneficiary" means that term as defined in Section 9.4.
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1.9 "Board" means that term as defined in Section 2.1.
1.10 "Cause" means (a) the Executive's committing any felony or other
crime involving dishonesty (b) willful or intentional material breach of this
Agreement including but not limited to intentionally or willfully wrongful
conduct in performing or refusing to perform the duties under this Agreement;
provided that Cause as defined in Clause (b) shall not constitute Cause unless
Executive is provided with written notice ("Notice to Cure") of such cause and
fails to cure it within a reasonable period (not less than 15 nor more than 30
days) after receipt of the Notice to Cure, except that Executive will not be
entitled to a Notice to Cure and opportunity to cure if the Executive knew that
the wrongful conduct would result in material harm to the Company; and provided
further that the Company shall not be required to provide the Notice to Cure in
cases of repeated acts or omissions (provided that notice with respect to such
act shall have been given at least once); and provided further that Cause as
defined in clause (b) shall not mean:
(i) bad judgment;
(ii) negligence;
(iii) any act or omission believed by the Executive in good faith to
have been in or not opposed to the interest of the Company (without intent
of the Executive to gain therefrom, directly or indirectly, a profit to
which the Executive was not legally entitled); or
(iv) any act or omission with respect to which notice of termination
of employment of the Executive is given more than twelve (12) months after
the earliest date on which any member of the Board who is not a party to
the act or omission, knew of such act or omission.
1.11 "Change of Control" shall be deemed to have occurred upon any of the
following events:
(a) any person (as such term is used in Rule 13d-5 of the Securities
Exchange Act of 1934 (the "1934 Act") or group (as such term is defined in
Section 13(d) of the 1934 Act), other than a Subsidiary or any employee
benefit plan (or any related trust) of the Company becomes the beneficial
owner of thirty-five percent (35%) or more of the Common Stock of the
Company or of securities of the Company that are entitled to vote generally
in the election of directors of the Company ("Voting Securities")
representing thirty-five percent (35%) or more of the combined voting power
of all Voting Securities of the Company;
(b) within a period of 24 months or less, the individuals who, as of
any date on or after July 30, 1998, constitute the Board (the "Incumbent
Directors") cease for any
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reason to constitute at least seventy five percent (75%) of the Board
unless at the end of such period, seventy five percent (75%) of individuals
then constituting the Board are persons who are Incumbent Directors or were
nominated upon the recommendation of seventy five percent (75%) of the
Incumbent Directors.
(c) approval by the stockholders of the Company of either of the
following:
(i) a merger, reorganization or consolidation ("Merger") with
respect to which the individuals and entities who were the respective
beneficial owners of Common Stock and Voting Securities of the
Company immediately before such Merger do not, after such Merger,
beneficially own, directly or indirectly, more than fifty percent
(50%) of, respectively, the common stock and the combined voting
power of the Voting Securities of the corporation resulting from such
Merger in substantially the same proportion as their ownership
immediately before such Merger, or
(ii) the sale or other disposition of all or substantially all
of the assets of the Company.
Notwithstanding the foregoing, there shall not be a Change in Control if, in
advance of such event, Executive agrees in writing that such event shall not
constitute a Change in Control.
1.12 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
1.13 "Common Stock" means common stock of the Company.
1.14 "Commencement Date" means that term as defined in Section 3.1.
1.15 "Company" has the meaning specified in the recitals to this
Agreement.
1.16 "Compensation Committee" means the Company's compensation committee
as formed, elected and reelected by the Board.
1.17 "Contract Term" has the meaning specified in Section 3.1 of this
Agreement.
1.18 "Date of Termination" means the date as of which the Executive's
employment with the Company is terminated by the Company or by the Executive for
any reason including, but not limited to, death or Disability.
1.19 "Disability" means a mental or physical condition which, in the
opinion of the Board, renders Executive unable or incompetent to carry out the
job responsibilities which such Executive held or the duties to which Executive
was assigned at the time the disability was incurred, which has existed for at
least three (3) months and which in the opinion of a physician mutually agreed
upon by the Company and Executive (provided that neither party shall
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unreasonably withhold his agreement) is expected to be permanent or to last for
an indefinite duration or a duration in excess of six (6) months.
1.20 "Excise Tax" has the meaning specified in Section 6.7.
1.21 "Executive" has the meaning specified in the recitals to this
Agreement.
1.22 "Fair Market Value" means (a) the average of the high and low prices
of the Common Stock reported on the Nasdaq National Market, (b) if the Common
Stock shall not then be listed on the Nasdaq National Market but there is a
public market for the Common Stock, the average of the high and low prices of
the Common Stock on the national securities exchange on which the Common Stock
is traded, or if no quotations are available, the average high bid and low asked
quotations in the over-the-counter market, or (c) if there is no public market
for the Common Stock, the fair market value of the Common Stock determined by
the Compensation Committee through whatever means or method as in the good faith
exercise of its discretion it shall at the time deem appropriate.
1.23 "Fiscal Year" means the 52-53 week period ending on the Saturday
closest to June 30.
1.24 "Full Retirement Benefits" means that term as defined in Section
6.8(a).
1.25 "Good Reason" means the occurrence of any one of the following events
unless Executive specifically agrees in writing that such event shall not be
Good Reason:
(a) any material breach of the Agreement by the Company including,
but not limited to:
(i) the failure of the Company to comply with the provisions
of Articles IV, V or VI of the Agreement;
(ii) failure to appoint, elect or reelect the Executive as a
member and Chairman of the Board;
(iii) causing or requiring Executive to report to anyone other
than the Board; and
(iv) assignment of duties materially inconsistent with his
position and duties described in this Agreement.
(b) the failure of the Company to assign this Agreement to a
successor to the Company or failure of a successor to the Company to
explicitly assume and agree to be bound by the Agreement,
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(c) the Company's requiring the Executive to be based at any office
or location more than 50 miles from the Company's offices as of the date of
execution of this Agreement in Mt. Prospect, Illinois,
(d) the Termination of Employment without Cause by the Company of
▇▇▇▇▇▇▇ ▇. ▇▇▇ or the Termination of Employment by ▇▇▇▇▇▇▇ ▇. ▇▇▇ for Good
Reason (in each case as determined in accordance with the employment
agreement between the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇),
(e) the Termination of Employment without Cause by the Company of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or the Termination of Employment by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for
Good Reason (in each case as determined in accordance with the employment
agreement between the Company and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇),
(f) a Termination of Employment by Executive for any reason during
the 30-day period immediately following the one-year anniversary of a
Change of Control; provided, however, that this Subsection 1.26(f) shall
not be treated as Good Reason for purposes of Section 8.1 hereof.
Notwithstanding the foregoing, no act or omission by the Company shall
constitute Good Reason as defined in subparagraph (a) or (b) hereof unless the
Executive gives the Company thirty (30) days prior written notice of the act or
omission which constitutes Good Reason and the Company fails to cure such act or
omission within the thirty (30) day period (provided that Executive shall not be
required to provide the foregoing notice in cases of repeated acts or omissions
(provided that notice with respect to such act shall have been given at least
once) or intentional acts or omissions by the Company); and such notice of
Termination of Employment for Good Reason is given within twelve (12) months
after Executive had actual knowledge of such act or omission.
1.26 "Incumbent Directors" means that term as defined in Section 1.11.
1.27 "Initial Base Salary" means that term as defined in Section 4.1.
1.28 "Maximum Goals" means that term as defined in Section 4.2.
1.29 "Maximum Bonus" means that term as defined in Section 4.2.
1.30 "Merger" means that term as defined in Section 1.11.
1.31 "1934 Act" means that term as defined in Section 1.11.
1.32 "Notice of Consideration" means that term as defined in Section 7.1.
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1.33 "Performance Period" means each period of time ending the last day of
each calendar year included in the term of this Agreement commencing with the
calendar year ending December 31, 1998.
1.34 "Permitted Transferee" means the spouse of the Executive, a lineal
descendent of the Executive or a spouse of a lineal descendent of the Executive
or a trust, limited partnership or other entity principally benefitting all or a
portion of such individuals.
1.35 "Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity or government (whether federal,
state, county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
1.36 "Prorata Annual Incentive Bonus" means (a) the product of the amount
of the Target Bonus to which the Executive would have been entitled if he had
been employed by the Company on the last day of the Performance Period
containing the Date of Termination and if the Company had achieved its Target
Goals for such Performance Period, multiplied by (b) a fraction of the numerator
of which is the numbers of days which have elapsed in such Performance Period
through the Date of Termination and the denominator of which is 365.
1.37 "Prorata Retirement Benefits" means that term as defined in Section
6.8(b).
1.38 "Stock Option" means that term as defined in Section 5.1.
1.39 "Stock Option Term" means that term as defined in Section 5.1.
1.40 "Subsequent Base Salary" means that term as defined in Section 4.1.
1.41 "Subsidiary" means, with respect to any Person, (a) any corporation
or other entity of which an aggregate of more than fifty percent (50%) of the
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether, at the
time, Stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) is at the
time, directly or indirectly, owned legally or beneficially by such Person
and/or one or more Subsidiaries of such Person, and (b) any partnership in which
such Person and/or one or more Subsidiaries of such Person shall have an
interest (whether in the form of voting or participation in profits or capital
contribution) of more than fifty percent (50%).
1.42 "Target Bonus" means that term as defined in Section 4.2.
1.43 "Target Goals" means that term as defined in Section 4.2.
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1.44 "Taxes" means the incremental federal, state and local income,
excise and other taxes payable to the Executive with respect to any applicable
item of income.
1.45 "Tax Gross-Up Payment" means an amount payable to the Executive
in immediately available funds such that after payment of Taxes on such payment
there remains a sufficient amount to pay the Taxes being reimbursed.
1.46 "Termination of Employment" occurs the first day on which an
individual is for any reason no longer employed by the Company.
1.47 "Termination of Employment Without Cause" means a termination of
the Executive's employment by the Company for any reason other than Cause,
including termination at the end of the Contract Term after the Company's giving
a Notice of Non-Renewal.
1.48 "Threshold Bonus" means that term as defined in Section 4.2.
1.49 "Threshold Goals" means that term as defined in Section 4.2.
1.50 "Voting Securities" means that term as defined in Section 1.11.
ARTICLE II.
DUTIES
2.1 Duties. The Executive shall be a member and the Chairman of the
Board of Directors (the "Board") of the Company and Secretary of the Company.
Executive shall, as Chairman, preside at all meetings of the Board and shall
assume a primary role in developing sales for the Company and maintaining good
business relations with the customers and suppliers of the Company; it being
contemplated that the shareholders and Directors of the Company will elect and
re-elect the Executive to the offices of a member and Chairman of the Board and
Secretary throughout the Contract Term. During the Contract Term, and excluding
any periods of vacation, sick leave or disability to which the Executive is
entitled, the Executive agrees to devote the Executive's full attention and time
to the business and affairs of the Company and to use the Executive's best
efforts to perform faithfully and efficiently the duties and responsibilities of
the Executive's positions as described herein.
2.2 Other Activities. During the Contract Term, it shall not be a
violation of this Agreement for the Executive to (a) serve on corporate, civic
or charitable boards or committees, (b) deliver lectures, fulfill speaking
engagements or teach at educational institutions or (c) manage personal
investments, so long as such activities do not significantly interfere with the
performance of the Executive's duties in accordance with this Agreement.
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ARTICLE III.
TERM OF AGREEMENT
3.1 Term. Subject to the extension and termination provisions
hereinafter provided, the initial term of this Agreement shall begin on December
19, 1997 (the "Commencement Date") and end on December 31, 2001. The term (the
"Contract Term") shall mean the initial term of this Agreement plus any
extensions thereto. Except as provided in Article VII, the employment of
Executive by the Company shall not be terminated prior to the end of the
Contract Term.
ARTICLE IV.
COMPENSATION
4.1 Salary. Commencing with the Commencement Date hereof through June
30, 1998, the Company shall pay to the Executive in accordance with the normal
payroll practices of the Company an annual salary at a rate of $425,000 per year
(the "Initial Base Salary"). Commencing with July 1, 1998 through the remaining
years of the Contract Term, the Company shall pay to the Executive in accordance
with the normal payroll practices of the Company an annual salary at the rate of
$500,000 per year (the "Subsequent Base Salary"). During the Contract Term, the
Annual Base Salary shall be reviewed at least annually and may be increased at
any time and from time to time as shall be determined by the Compensation
Committee, after consultation with the Executive. Any increase in Annual Base
Salary shall not serve to limit or reduce any other obligation to the Executive
under this Agreement. Annual Base Salary shall not be reduced after any such
increase without the express written consent of the Executive.
4.2 Bonus. The Company shall pay or cause to be paid to the Executive
an annual cash bonus ("Annual Incentive Bonus") in accordance with the terms
hereof for each Performance Period which ends during the Contract Term. The
Executive shall be eligible for an Annual Incentive Bonus ranging from zero to
one hundred and twenty five percent (125%) of his Annual Base Salary. If the
Company achieves target performance goals (the "Target Goals"), as determined by
the Compensation Committee on a calendar year basis after consulting with
Executive, such Annual Incentive Bonus shall be one hundred percent (100%) of
the Executive's Annual Base Salary (the "Target Bonus"). If the Company achieves
maximum performance goals ("Maximum Goals"), as determined by the Compensation
Committee on a calendar year basis after consulting with Executive, such Annual
Incentive Bonus shall be one hundred and twenty five percent (125%) of the
Executive's Annual Base Salary ("Maximum Bonus"). If the Company achieves
threshold performance goals, as determined by the Compensation Committee on a
calendar year basis after consulting with Executive, such Annual Incentive Bonus
shall be twenty five percent (25%) of the Executive's Annual Base Salary (the
"Threshold Goals"). If the Company does not achieve such Threshold Goals,
Executive shall not receive an Annual Incentive Bonus for such year. If the
Company achieves a level which falls between the Threshold Goals and the
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Target Goals or between the Target Goals and the Maximum Goals, lineal
interpolation shall be used to determine the percentage of Executive's Annual
Incentive Bonus received by Executive for such year. Such performance goals
shall be set by the Compensation Committee no later than ninety (90) days after
the first day of each calendar year. The Company shall pay Executive all Annual
Incentive Bonus amounts that are payable with respect to a calendar year in a
single lump-sum cash payment as soon as practicable after the Company can
determine whether and the degree to which Maximum Goals, Target Goals or
Threshold Goals have been achieved after the end of such calendar year.
ARTICLE V.
STOCK OPTION GRANT
5.1 Grant of Stock Options. As an inducement to the Executive to
enter into this Agreement, the Company hereby agrees to cause the Stock Option
Committee of the Board to grant to the Executive (pursuant to, and subject to
stockholder approval of, the Salton/Maxim Housewares, Inc. 1998 Stock Option
Plan (the "1998 Plan")): (i) on December 18, 1998, stock options to purchase
63,179 shares of Common Stock with an exercise price equal to the closing price
of the Common Stock reported on the Nasdaq National Market on December 18, 1998;
and (ii) On December 17, 1999, stock options to purchase 63,179 shares of Common
Stock with an exercise price equal to the closing price of the Common Stock on
the Nasdaq National Market on December 17, 1999; provided that the foregoing
stock option grants need not be made if prior to the required date of such
grants the Executive's employment is terminated for Cause or if the Executive's
employment is terminated without Good Reason or due to his death or Disability.
The stock options to be granted pursuant to this Section 5.1 are collectively
referred to herein as the "Stock Options."
The Company agrees to use its reasonable best efforts (which shall
include the solicitation of proxies) to obtain stockholder approval of the 1998
Plan as soon as practicable. In the event that (i) the 1998 Plan is not approved
by stockholders on or prior to December 18, 1998, or (ii) the Stock Option
Committee of the Board fails to grant the aforementioned Stock Options for any
reason other than the termination of the Executive's employment for Cause or by
the Executive for Good Reason, death or Disability, then the Company agrees to
grant to the Executive stock appreciation rights which provide the Executive
with substantially the same benefits as the Stock Options (as if the Executive
continued to be an employee of the Company). The term of the Stock options will
be ten (10) years and one-third of the Stock Options will vest each anniversary
of December 19, 1997. The other terms and conditions of the Stock Options will
be set forth in the 1998 Plan. Notwithstanding the foregoing, in the event that
prior to December 17, 1999, the Company announces a Change of Control, then upon
consummation of such Change of Control, the Executive shall be entitled to elect
to receive in lieu of the exercise of any of the Stock Options which are
required to be granted to the Executive in accordance with this Section 5.1 a
lump sum payment upon such Change of Control in an amount equal to (i) the
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difference between (x) the average of the closing price of the Common Stock
reported on the Nasdaq National Market for the five trading days immediately
preceding the Change of Control and (y) $15.25, multiplied by (ii) the number of
shares of Common Stock subject to the Stock Options.
ARTICLE VI.
OTHER BENEFITS
6.1 Incentive, Savings and Retirement Plans. In addition to Annual
Base Salary and Annual Incentive Bonuses, the Executive shall be entitled to
participate during the Contract Term in all incentives (including long-term
incentives), savings and retirement plans, practices, policies and programs
applicable to other peer executives of the Company (subject to the eligibility
requirements of such plans), and other perquisites which are available to other
executives of the Company or which hereafter are made available to other
executive employees of the Company by the Board.
6.2 Welfare Benefits. During the Contract Term, the Executive and/or
the Executive's family, as the case may be, shall be eligible for participation
in and shall receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company (including, and without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, dependent life, accidental death and travel accident
insurance plans and programs) applicable to other executive employees of the
Company.
6.3 Fringe Benefits. During the Contract Term, the Executive shall be
entitled to fringe benefits applicable to other peer executives of the Company.
6.4 Vacation. During the Contract Term, the Executive shall be
entitled to paid vacation time in accordance with the plans, practices,
policies, and programs applicable to other peer executives of the Company, but
in no event shall such vacation time be less than four (4) weeks per calendar
year. Any vacation not taken within three (3) months after the end of the
calendar year shall be canceled and shall not accumulate to subsequent years
unless the Compensation Committee for good business reasons determines
otherwise.
6.5 Expenses. During the Contract Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable employment-related
expenses incurred by the Executive upon the Company's receipt of accounting in
accordance with practices, policies and procedures applicable to other executive
employees of the Company.
6.6 Office and Support Staff. During the Contract Term, the Executive
shall be entitled to an office or offices of a size and with furnishings and
other appointments, and to personal secretarial and other assistance, provided
with respect to other executive employees of the Company.
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6.7 Tax Gross-Up Payment. In the event it shall be determined that
any payment to the Executive pursuant to this Agreement or any other payment or
benefit from the Company, any affiliate of the Company, any shareholder of the
Company or any other person would be subject to the excise tax imposed by
Section 4999 of the Code or any similar tax payable under any federal, state,
local or other law (collectively, the "Excise Tax"), then the Executive shall be
entitled to receive a Tax Gross-Up Payment with respect to the Excise Tax.
ARTICLE VII.
TERMINATION BENEFITS
7.1 Termination of Employment for Cause or Other Than for Good
Reason. If, before the end of the Contract Term, the Company terminates the
Executive's employment for Cause or the Executive terminates employment other
than for Good Reason, death or Disability, the Company shall pay immediately
after the Date of Termination to the Executive an amount equal to the sum of (a)
the Executive's Accrued Annual Base Salary and (b) his Accrued Annual Incentive
Bonus. The Company may not terminate the Executive's employment for Cause
unless:
(a) no fewer than sixty (60) days prior to the Date of
Termination, the Company provides the Executive with written notice of
its intent to consider termination of the Executive's employment for
Cause, including a detailed description of the specific reasons which
form the basis for such consideration (the "Notice of Consideration");
(b) if, after providing Notice of Consideration, the Board by
three-quarters (3/4) majority (excepting Executive if Executive is a
member of the Board, and any other member of the Board alleged to be
involved in the events leading the Board to terminate the Executive for
Cause) so determines, the Board may suspend Executive with pay until a
final determination pursuant to this Section 7.1 has been made;
(c) for a period ending thirty (30) days after the date Notice of
Consideration is provided, the Executive shall have an opportunity to
appear before the Board, with or without legal representation, at the
Executive's election, to present arguments on his own behalf;
(d) following the presentation to the Board as provided in (c)
above, the Executive shall be terminated for Cause only if (i) the
members of the Board by three-quarters (3/4) majority (excepting
Executive if Executive is a member of the Board, and any other member
of the Board alleged to be involved in the events leading the Board to
terminate the Executive for Cause) determines that the actions of the
Executive constituted Cause and that the Executive's employment should
accordingly be terminated for Cause; and (ii) the Board provides the
Executive with a written determination setting forth in full
specificity the basis of such termination of
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employment which shall be consistent with the reasons set forth in the
Notice of Consideration; and
(e) the Company shall provide the Executive with not less than
thirty (30) days advance written notice of termination, including a
statement of the Date of Termination and the specific detailed basis
for such termination which shall be consistent with the reasons set
forth in the Notice of Consideration.
If Executive is terminated by the Company without full compliance with
the substantive and procedural requirements of this Section 7.1 prior
to the termination, the termination shall be deemed a Termination
Without Cause for all purposes of the Agreement.
7.2 Termination of Employment for Death or Disability. If, before the
end of the Contract Term, the Executive's employment terminates due to death or
Disability, the Company shall pay to the Executive, the beneficiaries designated
in writing by the Executive, or the Executive's estate, as the case may be,
immediately after the Date of Termination an amount which is equal to the sum of
(a) the Executive's Accrued Annual Base Salary as of the Date of Termination,
and (b) the Executive's Accrued Annual Incentive Bonus which is unpaid as of the
Date of Termination, and (c) the Executive's Prorata Annual Incentive Bonus.
7.3 Termination of Employment By The Company Without Cause Or By the
Executive for Good Reason. If there is a Termination of Employment Without Cause
or a Termination of Employment by the Executive for Good Reason, the Executive
shall receive the following: (a) immediately after the Date of Termination in a
lump-sum in immediately available funds, an amount equal to the sum of (i) the
Executive's Accrued Annual Base Salary, and (ii) any Accrued Annual Incentive
Bonus, and (iii) the Executive's Prorata Annual Incentive Bonus; (b) immediately
after the Date of Termination in a lump-sum in immediately available funds, an
amount equal to the product of (i) the number of years (stated as whole and
fractional years) remaining in the Contract Term as of the Date of Termination,
multiplied by (ii) the sum of the Annual Base Salary and the Target Bonus; (c)
immediately after the Date of Termination in a lump-sum in immediately available
funds, the total amount (if any) of the Executive's unvested benefits under any
Company sponsored plan or program which is forfeited on account of the
Executive's employment being terminated; and (d) the benefits (or if not
available the economic equivalent of the benefits) described in Sections 6.1,
6.2 and 6.3 to which Executive is entitled as of the Date of Termination shall
be continued for the period described in clause (b)(i) above, or at the election
of the Executive, an immediate lump-sum cash payment equal to the value of such
benefits provided that, with respect to any benefit to be provided on an insured
basis, such value shall be the present value of the premiums expected to be paid
for such coverage, and with respect to other benefits, such value shall be the
present value of the expected net cost to the Company of providing such
benefits.
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7.4 Termination Benefits upon a Change of Control. If within two
years after a Change of Control, there is a Termination of Employment by the
Executive for other than Good Reason, then Executive shall receive the payments
required by Section 7.3 except that the amount payable pursuant to Section
7.3(b) shall be an amount equal to the product of the number of years (stated as
whole and fractional years) remaining in the Contract Term as of the Date of
Termination multiplied by the Annual Base Salary.
7.5 Other Termination Benefits. In addition to any amounts or
benefits payable upon termination of employment hereunder and except as
otherwise provided herein, the Executive shall be entitled to any payments or
benefits explicitly provided hereunder or under the terms of any plan, policy or
program of the Company or as otherwise required by applicable law.
ARTICLE VIII.
RESTRICTIVE COVENANTS
8.1 Non-Solicitation of Employees; Confidentiality; Non-Competition.
The Executive covenants and agrees that at no time during the Executive's
employment by the Company nor during the one-year period immediately following
Termination of Employment for Cause, or Termination of Employment by Executive
for other than Good Reason will the Executive (i) directly or indirectly employ
or seek to employ any person or entity employed at that time by the Company or
otherwise encourage or entice any such person or entity to leave such
employment; (ii) become employed by, enter into a consulting arrangement with or
otherwise agree to perform personal services for a Competitor (as defined
below); (iii) acquire an ownership interest in a Competitor, or (iv) solicit any
customers or vendors of the Company on behalf of or for the benefit of a
Competitor. Executive further covenants and agrees that at no time during the
Executive's employment by the Company nor at any time following Termination of
Employment with the Company will the Executive communicate, furnish, divulge or
disclose in any manner to any person or entity confidential business information
or trade secrets of the Company, without the prior express written consent of
the Company. For purposes of this Section 8.1, "Competitor" means any entity
which engages in the design or distribution to department stores or catalogue
vendors of household products which directly compete with those sold by the
Company.
8.2 Injunction. The Executive acknowledges that the Company relies on
the provisions of this Article VIII and that monetary damages will not be an
adequate remedy to a breach of this Article, and that it would be impossible for
the Company to measure damages in the event of such a breach. Therefore, the
Executive agrees that, in addition to other rights that the Company may have,
the Company is entitled to an injunction preventing the Executive from doing any
act that would be in breach of this Article VIII.
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ARTICLE IX.
MISCELLANEOUS
9.1 Full Settlement. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including without
limitation, set-off, counterclaim, recoupment, defense or other claim, right or
action which the Company may have against the Executive or others provided,
however, that if the Company causes the Executive to have a Termination of
Employment for Cause pursuant to this Agreement on account of theft or
embezzlement, the Company may offset against the amounts due under this
Agreement the amounts taken from the Company by the Executive through theft or
embezzlement. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement, nor shall the
amount of any payment hereunder be reduced, except as otherwise specifically
provided herein, by any compensation earned by the Executive as result of
employment by another employer.
9.2 Enforcement.
(a) If the Executive incurs legal or other fees and expenses in
an effort to establish entitlement to fees and benefits under this
Agreement, the Company shall reimburse the Executive for such fees and
expenses regardless of the outcome of such effort and a Tax Gross-Up
Payment on Taxes incurred with respect to amounts paid pursuant to this
Section 9.2.
(b) The Company shall provide reimbursement of fees and expenses,
as described in paragraph (a) above, to the Executive on a monthly
basis upon the Executive's written submission of a request for
reimbursement together with proof that the fees and expenses were
incurred.
(c) If Executive does not prevail (after exhaustion of all
available judicial remedies), and a court of competent jurisdiction
determines that the Executive had no reasonable basis for bringing an
action hereunder or there was an absence of good faith for bringing an
action hereunder, no further reimbursement for legal fees and expenses
shall be due to the Executive and Executive shall refund any amounts
previously reimbursed hereunder with respect to such action.
(d) If the Company fails to pay any amount provided under this
Agreement when due, the Company shall pay interest on such amount at a
rate equal to (i) the rate of interest on the Company's revolving
credit charged by the Company's principal lender plus three percent
(3%), or (ii) in the absence of such revolving credit, 300 basis points
over the prime commercial lending rate announced by the LaSalle
National Bank on the date such amount is due or, if no such rate shall
be
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announced on such date, the immediately prior date on which the LaSalle
National Bank announced such a rate.
9.3 Assignment, Successors. The Company may freely assign its
respective rights and obligations under this Agreement to a successor of the
Company's business, without the prior written consent of the Executive. This
Agreement shall be binding upon and inure to the benefit of the Executive and
the Executive's estate and the Company and any assignee of or successor to the
Company.
9.4 Beneficiary. If the Executive dies prior to receiving all of the
salary and bonus payable hereunder pursuant to Article IV or exercising the
Stock Options, or otherwise provided under the terms and conditions of the
Company's other benefit plans, programs or policies, such salary and bonus shall
be paid in a lump-sum payment to and the Stock Options may be exercised by the
beneficiary ("Beneficiary") designated by the Executive in writing to the
Company during the Executive's lifetime, which the Executive may change from
time to time by new designation filed in like manner without the consent of any
Beneficiary; or if no such Beneficiary is designated, to the Executive's estate.
9.5 Nonalienation of Benefits. Benefits payable under this Agreement
shall not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind, either voluntary or involuntary, prior to actually being received by the
Executive, and any such attempt to dispose of any right to benefits payable
hereunder shall be void.
9.6 Severability. If all or any part of this Agreement is declared by
any court or governmental authority to be unlawful or invalid, such unlawfulness
or invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any paragraph or part of a paragraph so
declared to be unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such paragraph or part of a paragraph to
the fullest extent possible while remaining lawful and valid.
9.7 Amendment and Waiver. This Agreement shall not be altered,
amended or modified except by written instrument executed by the Company and
Executive. A waiver of any term, covenant, agreement or condition contained in
this Agreement shall not be deemed a waiver of any other term, covenant,
agreement or condition, and any waiver of any default in any such term,
covenant, agreement or condition shall not be deemed a waiver of any later
default thereof or of any other term, covenant, agreement or condition.
9.8 Notices. All notices and other communications hereunder shall be
in writing and delivered by hand or by first class registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
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If to the Company: Salton/Maxim Housewares, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Executive: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may from time to time designate a new address by notice given in
accordance with this Section. Notice and communications shall be effective when
actually received by the addressee.
9.9 Counterpart Originals. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
9.10 Entire Agreement. This Agreement forms the entire agreement
between the parties hereto with respect to any severance payment and with
respect to the subject matter contained in the Agreement.
9.11 Effect on Other Agreements. This Agreement shall supersede all
prior agreements, promises and representations regarding severance or other
payments contingent upon termination of employment, whether in writing or
otherwise.
9.12 Applicable Law. The provisions of this Agreement shall be
interpreted and construed in accordance with the laws of the State of Illinois,
without regard to its choice of law principles.
9.13 Survival of Executive's Rights. All of the Executive's rights
hereunder, including but not limited to his rights to compensation and benefits,
and his obligations under Section 8.1 hereof, shall survive the termination of
the Executive's employment and/or the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
SALTON/MAXIM HOUSEWARES, INC.
---------------------------------
By:
Its:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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