SUPPORT SERVICES AGREEMENT
THIS SUPPORT SERVICES AGREEMENT is entered into as of December 23, 1998,
by and between SUNBEAM CORPORATION, INC., a Delaware corporation, and SUNBEAM
PRODUCTS, INC., a Delaware Corporation, (each a "Provider"), and THE ▇▇▇▇▇▇▇
COMPANY, INC., a Delaware Corporation, APPLICATION DES GAZ, S.A. a French
corporation, EASTPAK CORPORATION, a Delaware Corporation, COLEMAN POWERMATE,
INC., a Nebraska corporation, BRK BRANDS, INC., a Delaware corporation, and
SIGNATURE BRANDS, INC., a Ohio corporation, (each a "Recipient").
WHEREAS, Recipient, directly or through subsidiary or affiliated
companies, is engaged in the purchase, manufacture, sourcing, promotion and
distribution of certain consumer products, including but not limited to small
appliances, bedding (electric and other), health and personal care products,
▇▇▇▇▇▇ and beauty equipment, hair clippers, animal care products, clocks and
weather instruments, barbecue grills and outdoor furniture (collectively the
"Products") worldwide;
WHEREAS, Recipient is a subsidiary or affiliated company of Provider and
Recipient desires to secure certain technical support services for its
business operations, as well as those of its subsidiary or affiliated
companies;
WHEREAS, Provider has the expertise to undertake such support services;
WHEREAS, Provider is willing to undertake such support in exchange for
appropriate compensation; and
WHEREAS, the parties desire to specify the terms on which such services
will be provided to Recipient by Provider.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, the parties hereby agree as follows.
ARTICLE 1. SERVICES AND COMPENSATION
SECTION 1.1. PROVISION OF SERVICES. Provider shall promptly provide
the services set forth in Exhibit A to this Agreement to Recipient, and its
subsidiary or affiliated companies listed in Exhibit B hereto, which may be
revised from time to time as the parties agree.
SECTION 1.2. RATES. Provider shall provide quarterly reports to
Recipient listing the services that Provider has provided Recipient.
Compensation for such services shall be charged at fair market rates, as
reflected in the quarterly financial statements issued by Provider, which
rates shall be reviewed from time to time by the parties.
SECTION 1.3. PAYMENT BY RECIPIENT. Recipient shall pay to Provider
the amount stated in such quarterly Report within thirty (30) days following
receipt of such Report.
SECTION 1.4 PAYMENT OF EXPENSES. Recipient shall promptly reimburse
Provider for all out of pocket expenses incurred in providing any service
pursuant to this Agreement, including but not limited to fees of third party
providers and all travel and living expenses incurred in connection with the
services to be provided.
SECTION 1.5. CURRENCY. All financial obligations originating from the
terms and conditions of this Agreement shall be denominated in United States
Dollars.
SECTION 1.6. EXAMINATION OF BOOK AND RECORDS. Recipient and Provider
shall each have the right at its respective expense to examine the books and
records of the other party during normal business hours at such other party's
offices on giving reasonable notice.
ARTICLE II. TERM AND TERMINATION
SECTION 2.1. TERM. This Agreement shall remain in effect until
terminated by either party.
SECTION 2.2. TERMINATION. Either party may terminate this Agreement
by a written notice sent to the other party not less than thirty (30) days
prior to the effective date of termination.
ARTICLE III. MISCELLANEOUS PROVISIONS
SECTION 3.1. NOTICES. Any and all notices, elections, offers,
acceptances, and demands permitted or required to be made under this
Agreement shall be in writing, signed by the person giving such notice,
election, offer, acceptance, or demand and shall be delivered personally, or
sent by registered or certified mail, to the party, at its address on file
with the other party or at such other address as may be supplied in writing.
The date of personal delivery or the date of mailing, as the case may be,
shall be the date of such notice, election, offer, acceptance, or demand.
SECTION 3.2. FORCE MAJEURE. If the performance of any part of this
Agreement by either party, or of any obligation under this Agreement, is
prevented, restricted, interfered with, or delayed by reason of any cause
beyond the reasonable control of the party liable to perform, unless
conclusive evidence to the contrary is provided, the party so affected shall,
on giving written notice to the other party, be excused from such performance
to the extent of such prevention, restriction, interference, or delay,
provided that the affected party shall use its reasonable best efforts to
avoid or remove such causes of nonperformance and shall continue performance
with the utmost dispatch whenever such causes are removed. When such
circumstances arise, the parties shall discuss what, if any, modification of
the terms of this Agreement may be required in order to arrive at an
equitable solution.
SECTION 3.3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
on and shall inure to the benefit of the parties, Affiliates, their
respective successors, successors in title, and assigns, and each party
agrees, on behalf of it, its Affiliates, successors, successors in title, and
assigns, to execute any instruments that may be necessary or appropriate to
carry out and execute the purpose and intentions of this Agreement and hereby
authorizes and directs its Affiliates,
2
successors, successors in title, and assigns to execute any and all such
instruments. Each and every successor in interest to any party or Affiliate,
whether such successor acquires such interest by way of gift, devise,
assignment, purchase, conveyance, pledge, hypothecation, foreclosure, or by
any other method, shall hold such interest subject to all of the terms and
provisions of this Agreement. The rights of the parties, Affiliates, and
their successors in interest, as among themselves and shall be governed by
the terms of this Agreement, and the right of any party, Affiliate or
successor in interest to assign, sell or otherwise transfer or deal with its
interests under this Agreement shall be subject to the limitations and
restrictions of this Agreement.
SECTION 3.4. AMENDMENT. No change, modification, or amendment of this
Agreement shall be valid or binding on the parties unless such change or
modification shall be in writing signed by the party or parties against whom
the same is sought to be enforced.
SECTION 3.5. REMEDIES CUMULATIVE. The remedies of the parties under
this Agreement are cumulative and shall not exclude any other remedies to
which the party may be lawfully entitled.
SECTION 3.6. FURTHER ASSURANCES. Each party hereby covenants and
agrees that it shall execute and deliver such deeds and other documents as
may be required to implement any of the provisions of this Agreement.
SECTION 3.7. NO WAIVER. The failure of any party to insist on strict
performance of a covenant hereunder or of any obligation hereunder shall not
be a waiver of such party's right to demand strict compliance therewith in
the future, nor shall the same be construed as a novation of this Agreement.
SECTION 3.8. INTEGRATION. This Agreement constitutes the full and
complete agreement of the parties.
SECTION 3.9. CAPTIONS. Titles or captions of articles and paragraphs
contained in this Agreement are inserted only as a matter of convenience and
for reference, and in no way define, limit, extend, or describe the scope of
this Agreement or the intent of any provision hereof.
SECTION 3.10. NUMBER AND GENDER. Whenever required by the context, the
singular number shall include the plural, the plural number shall include the
singular, and the gender of any pronoun shall include all genders.
SECTION 3.11. COUNTERPARTS. This Agreement may be executed in multiple
copies, each of which shall for all purposes constitute an Agreement, binding
on the parties, and each partner hereby covenants and agrees to execute all
duplicates or replacement counterparts of this Agreement as may be required.
SECTION 3.12. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the United States.
3
SECTION 3.13. COMPUTATION OF TIME. Whenever the last day for the
exercise of any privilege or the discharge of any duty hereunder shall fall
on a Saturday, Sunday, or any public or legal holiday, whether local or
national, the person having such privilege or duty shall have until 5:00 p.m.
on the next succeeding business day to exercise such privilege, or to
discharge such duty.
SECTION 3.14. SEVERABILITY. In the event any provision, clause,
sentence, phrase, or word hereof, or the application thereof in any
circumstances, is held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder hereof, or of the application of any such provision, sentence,
clause, phrase, or word in any other circumstances.
SECTION 3.15. COSTS AND EXPENSES. Unless otherwise provided in this
Agreement, each party shall bear all fees and expenses incurred in performing
its obligations under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SUNBEAM CORPORATION SUNBEAM PRODUCTS, INC.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ -------------------------
(Type or Print) (Type or Print)
Title: Vice President, Taxes Title: Vice President, Taxes
------------------------ -------------------------
Date: Date:
------------------------ -------------------------
THE ▇▇▇▇▇▇▇ COMPANY, INC. APPLICATION DES GAZ, S.A.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------ -------------------------
(Type or Print) (Type or Print)
Title: Vice President and Treasurer Title: President Directeur General
------------------------ -------------------------
Date: Date:
------------------------ -------------------------
4
EASTPAK CORPORATION COLEMAN POWERMATE, INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ -------------------------
(Type or Print) (Type or Print)
Title: Assistant Secretary Title: Assistant Secretary
------------------------ -------------------------
Date: 12/23/98 Date: 12/23/98
------------------------ -------------------------
BRK BRANDS, INC. SIGNATURE BRANDS, INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -------------------------
(Type or Print) (Type or Print)
Title: Vice President, General Title: Vice President, General
Counsel and Secretary Counsel and Secretary
------------------------ -------------------------
Date: Date:
------------------------ -------------------------
5
EXHIBIT A
SERVICES
A. PRODUCT DESIGN. Assistance relating to the development, design and
manufacture of Products, including but not limited to the furnishing of
detail and assembly drawings, bills of materials, process and material
specifications, performance specifications, purchasing specifications,
photographs, service information, test data, operating instructions and
similar general engineering and manufacturing information as well as
designs and specifications relating to manufacturing equipment, tools,
dies, jigs, fixtures, gauges and similar items necessary or useful to
enable Recipient to manufacture or cause to be manufactured on its behalf
the Products.
B. MARKETING. Assistance in researching, developing and implementing
marketing and promotional plans for the distribution and sale of the
Products, including but no limited to research and assistance in developing
effective marketing plans for the Products in the Territory, access to any
and all marketing research conducted by the Provider, provision of
marketing manuals and other marketing or promotional material, printing or
other development of marketing and promotional materials and general advise
and assistance from time to time as requested by Recipient.
C. SOURCING. Assistance in locating and contracting with unrelated parties
for the sourcing of Products, including but not limited to location of
suppliers, evaluation and testing of products, review and evaluation of
manufacturing facilities and management ability of such third party
suppliers, negotiation of terms for supply of Products to Recipient and or
other affiliates of Recipient for purposes of obtaining the lowest possible
unit price and provision of legal, insurance and import/export advise.
D. MIS. Assistance in acquiring, programming and maintaining appropriate and
efficient management information systems that are compatible with those
maintained by the Provider.
E. FINANCIAL AND TAX. Assistance in implementing general tax and accounting
policies and procedures for maximizing available financial information and
minimizing tax impacts.
F. TRAINING. Assistance in training personnel in all aspect of operation of
the business, including on-site training at the facilities of the Provider
and/or the Recipient.
G. MANUFACTURING. Assistance in all aspects of manufacturing, whether
conducted by Recipient or any third party providing Products to Recipient,
including but not limited to modifying machinery, equipment or
installations and advice regarding
such modification, testing machinery or Products, establishing and
maintaining appropriate quality control processes and measures and
advising as to new processes and methods of manufacture.
H. HUMAN RESOURCES. Assistance in all aspects of personnel management,
including but not limited to assistance, training and advice regarding
employment, promotion, termination, training and compensation of personnel
and establishment of policies and procedures for management of personnel.
I. LEGAL RESOURCES. Assistance in all aspects of legal advice and counsel,
including but not limited to assistance, training, advice and counsel on
litigation, import and export laws, antitrust, marketing and promotions
law, employment and labor law, establishment of policies and procedures for
legal compliance, corporate secretarial and structure matters, and
intellectual property and international law.
Exhibit A - Page 2
EXHIBIT B
SUBSIDIARY OR AFFILIATED COMPANIES
DDG I, Inc. (a Delaware corporation)
Sunbeam Americas Holdings, Ltd. (a Delaware corporation)
Sunbeam Corporation (Canada) Ltd.
▇▇ ▇▇, Inc. (a Delaware corporation)
Sunbeam Services, Inc. (a Delaware corporation)
Sunbeam Holdings S.A. de C.V. (MX)
Sunbeam-Oster de ▇▇▇▇▇ ▇.▇. de C.V.
Sunbeam Mexicana S.A. de C.V.
Sunbeam-Oster ▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. de C.V.
PH III, Inc. (a Florida corporation)
Sunbeam International FSC, Inc. (Barbados)
SI II, Inc. (a Florida corporation)
Oster de Venezuela, S.A. (Venezuela)
Sunbeam Europe Limited (UK)
Oster International GmbH (Germany)
Sunbeam International (Asia) (Hong Kong)
Sunbeam Japan K.K. (Japan)
OP II, Inc. (a Florida corporation)
Sunbeam Asset Diversification, Inc. (a Delaware
corporation)
Wallingford Insurance Company Ltd. (Bermuda)
Sunbeam del Peru, S.A.
Sunbeam Latin America, Inc. (a Delaware corporation)
Exhibit B - Page 1