EXHIBIT 10.21
OPTION AGREEMENT
for
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THIS OPTION AGREEMENT (this "Agreement") is made as of November 25,
1996 (the "Grant Date"), by and between Remington Products Company, L.L.C., a
Delaware limited liability company (the "Company"), and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(the "Executive").
WHEREAS, on the terms and subject to the conditions hereof, the
Company desires to grant Executive, and Executive wishes to acquire, options to
purchase and acquire the number of Common Units of the Company set forth on
Schedule I attached hereto (the "Options"); and
WHEREAS, this Agreement is one of several agreements entered into by
the Company with certain persons who are or will be key employees of the Company
(collectively with Executive, the "Management Option Holders") as part of a
management option plan designed to comply with Rule 701 promulgated under the
Securities Act (as defined below);
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
"Agreement" shall have the meaning set forth in the preface.
"Applicable Percentage" shall mean (i) 25% during the one-year
period commencing on the first anniversary of the Grant Date; (ii) 50% during
the one-year period commencing on the second anniversary of the Grant Date;
(iii) 75% during the one-year period commencing on the third anniversary of the
Grant Date; and (iv) 100% on and after the fourth anniversary of the Grant Date.
The Applicable Percentage shall be 100% after an IPO Exit Transaction.
"Cause" shall mean a termination of the employment of Executive by
the Company or any subsidiary thereof due to (i) the commission by Executive of
an act of fraud or embezzlement (including the unauthorized disclosure of
confidential or proprietary information of the Company or any of its
subsidiaries which results in material financial loss to the Company or any of
its subsidiaries), (ii) the commission by Executive of a felony, (iii) the
willful misconduct of Executive as an employee of the Company or any of its
subsidiaries which is reasonably likely to result in material injury or
financial loss to the Company or any of its subsidiaries or (iv) the willful
failure of Executive to render services to the Company or any of its
subsidiaries in accordance with the terms of Executive's employment which
failure amounts to a material neglect of Executive's duties to the Company or
any of its subsidiaries.
"Chase Bank" means Chase Manhattan Bank, N.A.
"Common Units" shall mean the common units of the Company, together
with any securities issued in exchange therefor.
"Company" shall have the meaning set forth in the preface.
"Cost" shall mean, with respect to each of the Common Units, the
exercise price per unit paid by Executive (as proportionately adjusted for all
subsequent stock splits, stock dividends and other recapitalization).
"Disability" shall mean the inability of Executive to perform the
essential functions of Executive's job, with or without reasonable
accommodation, by reason of a physical or mental infirmity, for a continuous
period of six months. The period of six months shall be deemed continuous unless
Executive returns to work for at least 30 consecutive business days during such
period and performs during such period services at the level and competence that
were performed prior to the beginning of the six-month period. The date of such
Disability (for purposes of determining the Termination Date in the event of
such Disability) shall be on the first day of such six-month period.
"Employee" shall mean any employee (as defined in accordance with
the regulations and revenue rulings then applicable under Section 3401(c) of the
Internal Revenue Code of 1986, as amended) of the Company or any of its
subsidiaries, and the term "Employment" shall include service as a part- or
full-time Employee to the Company or any of its subsidiaries.
"Executive" shall have the meaning set forth in the preface.
"Executive Group" shall have the meaning set forth in Section
4.1(a).
"Exercise Price" shall have the meaning set forth in Section 2.1.
"Expiration Date" shall have the meaning set forth in Section 2.2.
"Fair Market Value" shall mean the average of the closing prices of
the sales of the Company's Common Units on all securities exchanges on which the
Common Units may at the time be listed, or, if there have been no sales on any
such exchange on any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day, or, if on any day the Common Units
are not so listed, the average of the representative bid and asked prices quoted
in the NASDAQ System as of 4:00 p.m., New York time, or, if on any day the
Common Units are not quoted in the NASDAQ System, the average of the highest bid
and lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau Incorporated, or any similar successor
organization, in each such case averaged over a period of 21 days consisting of
the day as of which the Fair Market Value is being determined and the 20
consecutive business days prior to such day. If at any time the Common Units are
not listed on any securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the Fair Market Value shall be the fair value of the
Common Units determined in good faith by the Management Committee (without
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taking into account the lack of liquidity and minority position of the Common
Units subject to repurchase).
"Financing Default" shall mean an event which would constitute (or
with notice or lapse of time or both would constitute) an event of default under
any of the following as they may be amended, supplemented or modified from time
to time: (i) the Credit and Guarantee Agreement and Indenture (collectively, the
"Senior Financing Agreements") dated as of May 23, 1996 among the Company and
the financial institutions, agents and trustees party thereto, and any
extensions, renewals, refinancings or refundings thereof in whole or in part;
(ii) any provision of the Limited Liability Company Agreement or any of its
subsidiary's certificate of incorporation or limited liability company
agreement, as the case may be, as in effect on the Grant Date; and (iii) any of
the securities issued pursuant to or whose terms are governed by the terms of
any of the agreements set forth in clauses (i) and (ii) above, and any
extensions, renewals, refinancings or refundings thereof in whole or in part.
"Good Reason" shall have the meaning set forth in the Executive
Severance Agreement dated as of November __, 1996, between Executive and the
Company.
"Grant Date" shall have the meaning set forth in the preface.
"IPO" means the consummation of an initial public offering of Common
Units or common stock of a corporation that is the successor to the Company or
which owns, directly or indirectly, more than 50% of the Common Units of the
Company or its successor.
"IPO Exit Transaction" means the first date after an IPO, on which
Vestar Equity Partners, L.P., a Delaware limited partnership ("Vestar") and its
affiliates (not including employees of the general partner of Vestar) own less
than 10% of the Common Units or of the outstanding common stock of a corporation
that is the successor to the Company or which controls the Company or its
successor.
"Limited Liability Company Agreement" shall mean the Amended and
Restated Limited Liability Company Agreement of the Company, dated as of May 16,
1996, by and between RPI Corp. (formerly Remington Products, Inc.), a Delaware
corporation ("RPI"), Vestar ▇▇▇▇▇▇ Corp., a Delaware corporation ("▇▇▇▇▇▇"),
Vestar Razor Corp., a Delaware corporation ("Razor"), and the individuals listed
as management members on Schedule A thereto, as the same may be amended from
time to time.
"Management Committee" shall mean the Company's Management Committee
or any board of directors or similar governing body of a successor to the
Company.
"Management Common Units Subscription Agreements" shall mean the
____________________.
"Management Option Holders" shall have the meaning set forth in the
preface.
"Members Pledge Agreement" shall mean _______________.
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"Options" shall have the meaning set forth in the preface.
"Person" shall mean any individual, corporation, partnership,
limited liability company, trust, joint stock company, business trust,
unincorporated association, joint venture, governmental authority or other
entity of any nature whatsoever.
"Public Offering" shall mean a registered public offering of the
Company's Common Units.
"Reorganization" means the consummation of the transactions
contemplated by the Reorganization Agreement dated as of May 1, 1996, by and
among RPI, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇, Vestar/Remington Corp., a Delaware corporation
("Vestar Corp.") and Vestar.
"Retirement" shall mean Executive's retirement as an employee of the
Company or any of its subsidiaries on or after reaching age 65 or such earlier
age as may be otherwise determined by the Management Committee after at least
four years employment with the Company after the Grant Date.
"Sale of the Company" shall mean a Company Sale, as that term is
defined in the Limited Liability Company Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and all rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"Securityholders Agreement" shall mean the Securityholders Agreement
dated as of May 16, 1996 among ▇▇▇▇▇▇, Razor, Vestar, RPI, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
and other equity holders of the Company.
"Termination Date" means the date upon which Executive's employment
with the Company and its subsidiaries is terminated.
2. Grant of Options.
2.1 Confirmation of Grant; Option Price. Pursuant to the terms and
subject to the conditions set forth in this Agreement, the Company hereby
evidences and confirms the grant to Executive, effective on the Grant Date, of
the Options to purchase from the Company the number of Common Units set forth in
Schedule I attached hereto at an exercise price per unit (the "Exercise Price")
and for an aggregate exercise price set forth in Schedule I attached hereto. If
Executive exercises the Options, Executive must exercise the Options for all of
the Common Units subject thereto.
2.2 Expiration Date. The Options shall terminate on the tenth
anniversary of the Grant Date; provided, however, that if Executive's Employment
with the Company is terminated for any reason, the Options shall terminate on
the 90th day following the Termination Date unless the Management Committee
otherwise specifies a later date (such tenth anniversary of the Grant Date or
earlier date as specified in the proviso is referred to as the "Expiration
Date"). The Options may
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be exercised, subject to the terms of this Agreement, only (a) in connection
with a Sale of the Company, (b) after the effectiveness of a public offering of
the Common Units pursuant to an underwritten offering registered under the
Securities Act and (c) at any time during the 90-day period preceding the
Expiration Date. At 5:00 p.m. (New York time) on the Expiration Date,
unexercised Options shall be canceled and of no further force and effect.
Notwithstanding the foregoing, the Management Committee may require that the
Options be exercised in connection with any Sale of the Company or, if not so
exercised, provide that the Options terminate.
2.3 Exercise and Payment. The Executive may exercise the Options by
delivering written notice of exercise to the Company, which notice must (i)
contain the representations and warranties set forth in Section 3.2 and (ii) be
accompanied by the aggregate Exercise Price for the Common Units subject to the
Option in the form of cashier's check, certified check or wire transfer of
immediately available funds; provided that the Options may not be exercised by
Executive unless, to the extent applicable, all of the following conditions are
met:
(a) Legal counsel for the Company must be satisfied at the time of
exercise that the issuance of Common Units upon exercise will be in
compliance with the Securities Act and other applicable United States
federal, state, local and foreign laws;
(b) Executive must execute the Limited Liability Company Agreement
and Securityholders Agreement;
(c) Executive must deliver to the Company a completed and executed
election under 83(b) of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder in the form of Exhibit A attached
hereto (which election may be filed by the Company); and
(d) Executive must, if required by the Management Committee, execute
and deliver the Members Pledge Agreement or such other pledge agreement
containing provisions substantially similar to the Members Pledge
Agreement and such other documents and instruments contemplated
thereunder.
The Management Committee may impose such additional procedural requirements to
the exercise of the Options as it may deem necessary or advisable in connection
therewith. The Executive consents to the filing of the election contemplated by
Section 2.3(c).
3. Investment Representations and Covenants of the Executive.
3.1 Options and Common Units Unregistered. The Executive
acknowledges and represents that Executive has been advised by the Company that:
(a) the Options and the Common Units have not been registered under
the Securities Act;
(b) any Common Units issued upon exercise of the Options must be
held indefinitely and Executive must continue to bear the economic risk of
such investment in the
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Common Units unless the offer and sale of such Common Units is
subsequently registered under the Securities Act and all applicable state
securities laws or an exemption from such registration is available;
(c) there is no established market for the Options and the Common
Units and it is not anticipated that there will be any public market for
the Options or the Common Units in the foreseeable future;
(d) a restrictive legend in the form set forth below shall be placed
on the certificates representing the Options and the Common Units acquired
on exercise thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN REPURCHASE RIGHTS AND OTHER PROVISIONS SET FORTH IN AN
OPTION AGREEMENT BETWEEN THE ISSUER AND [NAME] ▇▇▇▇▇▇▇▇ DATED AS OF
JANUARY __, 1997, AS AMENDED AND MODIFIED FROM TIME TO TIME, A COPY
OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE ISSUER'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE";
(e) a notation shall be made in the appropriate records of the
Company indicating that the Options and the Common Units are subject to
restrictions on transfer and, if the Company should at some time in the
future engage the services of a securities transfer agent, appropriate
stop-transfer instructions will be issued to such transfer agent with
respect to the Options and the Common Units acquired on exercise thereof;
(f) upon exercise of the Options Executive must, if applicable,
execute and deliver the Limited Liability Company Agreement,
Securityholders Agreement and, if requested by the Management Committee,
the Members Pledge Agreement (all of which Executive has had access to and
understands the contents of), and become subject to the terms thereof; and
(g) the exercise of the Options, and becoming a member of the
Company, may subject Executive to taxation in the various jurisdictions
where the Company conducts business.
3.2 Additional Investment Representations. Upon each exercise of the
Options, Executive shall represent and warrant that:
(a) Executive's financial situation is such that Executive can
afford to bear the economic risk of holding the Common Units for an
indefinite period of time, has adequate means for providing for
Executive's current needs and personal contingencies, and can afford to
suffer a complete loss of Executive's investment in the Common Units;
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(b) Executive's knowledge and experience in financial and business
matters are such that Executive is capable of evaluating the merits and
risks of the investment in the Common Units;
(c) Executive understands that the Common Units are a speculative
investment which involves a high degree of risk of loss of Executive's
investment therein, there are substantial restrictions on the
transferability of the Common Units, and, on the date of Executive's
exercise of the Options and for an indefinite period thereafter, there may
be no public market for the Common Units and, accordingly, it may not be
possible for Executive to liquidate Executive's investment in case of
emergency, if at all;
(d) the terms of this Agreement provide that in the event that
Executive ceases to be an Employee, the Company has the right to
repurchase the Common Units issued upon exercise of the Options at a price
which may be less than the Fair Market Value of such Common Units;
(e) Executive understands and has taken cognizance of all the risk
factors related to the purchase of the Common Units, and, other than as
set forth in this Agreement, no representations or warranties have been
made to Executive or Executive's representatives concerning the Common
Units or the Company or their prospects or other matters;
(f) Executive has been given the opportunity to examine all
documents and to ask questions of, and to receive answers from, the
Company and its representatives concerning the Company and its
subsidiaries, the Reorganization, the Securityholders Agreement, the
Limited Liability Company Agreement and the terms and conditions of the
purchase of the Common Units and to obtain any additional information
which Executive deems necessary; and
(g) all information which Executive has provided to the Company and
the Company's representatives concerning Executive and Executive's
financial position is complete and correct as of the date of this
Agreement.
4. Certain Sales Upon Termination of Employment.
4.1 Put Option.
(a) If Executive's Employment terminates due to Disability, death or
Retirement (such date of termination, the "Put Date"), in either case prior to
the earlier of a Public Offering or the fifth anniversary of the Grant Date,
each of Executive and the Executive's Permitted Transferees (hereinafter
sometimes collectively referred to as the "Executive Group") shall have the
right, subject to the provisions of Section 5 hereof, for 90 days following the
Put Date (or, if the Options are exercised after the Put Date, 90 days following
the date of such exercise), to sell to the Company, and the Company shall be
required to purchase (subject to the provisions of Section 5 hereof), on one
occasion from each member of the Executive Group, all (but not less than all) of
the Common Units then held by the Executive Group at a price per Common Unit
equal to the greater of Fair Market Value (measured as of the Put Date) or Cost
for the Applicable Percentage (measured as of the Put
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Date) of the Common Units and (y) Cost for the remainder of the Common Units;
provided that in any case the Management Committee shall have the right, in its
sole discretion, to increase any of the foregoing purchase prices.
(b) If the Executive Group desires to exercise its option to require
the Company to repurchase Common Units obtained upon exercise of the Option
pursuant to Section 4.1(a), the members of the Executive Group shall send one
written notice to the Company setting forth such members' intention to
collectively sell all of their Common Units within the applicable 90-day period
described above, which notice shall be signed by each member of the Executive
Group. Subject to the provisions of Section 5.1, the closing of the purchase
shall take place at the principal office of the Company on a date specified by
the Company no later than the 60th day after the giving of such notice.
4.2 Call Options.
(a) Upon termination of Executive's Employment, the Company shall
have the right and option to purchase, for a period of 90 days following the
Termination Date (or, if the Options are exercised after the Termination Date,
90 days following the date of such exercise), and each member of the Executive
Group shall be required to sell to the Company, any or all of the Common Units
obtained upon exercise of the Options then held by each member of the Executive
Group at a price per Common Unit as follows:
(i) if Executive's Employment is terminated at any time due to
Disability, death or Retirement, the purchase price shall be (x) the
greater of Fair Market Value (measured as of the Termination Date) or Cost
for the Applicable Percentage (measured as of the Termination Date) of the
Common Units being purchased and (y) the average of the Fair Market Value
(measured as of the Termination Date) and Cost for the remainder of the
Common Units being purchased;
(ii) if Executive's Employment is terminated by the Company at
any time without Cause or by Executive for Good Reason, the purchase price
shall be (x) the greater of Fair Market Value (measured as of the
Termination Date) or Cost for the Applicable Percentage (measured as of
the Termination Date) of the Common Units being purchased and (y) Cost for
the remainder of the Common Units being purchased;
(iii) if after the fifth anniversary of the Grant Date
Executive's Employment is terminated (A) by Executive for any reason other
than Disability, death, Retirement, or Good Reason, or (B) by the Company
with or without Cause, the purchase price shall be the greater of Fair
Market Value (measured as of the Termination Date) or Cost of the Common
Units being purchased; and
(iv) if Executive's Employment is terminated prior to the
fifth anniversary of the Grant Date (A) by Executive for any reason other
than Disability, death, Retirement, or Good Reason, or (B) by the Company
for Cause, the purchase price shall be the Cost of the Common Units being
purchased;
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provided further that, in any case, the Management Committee shall have the
right, in its sole discretion, to increase any purchase price set forth above.
(b) If the Company desires to exercise its option to purchase any
Common Units pursuant to this Section 4.2, the Company shall, not later than end
of the applicable 90 day period referred to above, send written notice to each
member of the Executive Group of its intention to purchase the Common Units,
specifying the number of Common Units to be purchased (the "Call Notice").
Subject to the provisions of Section 5, the closing of the purchase shall take
place at the principal office of the Company on a date specified by the Company
no later than the 60th day after the giving of the Call Notice.
4.3 Obligation to Sell Several. In the event there is more than one
member of the Executive Group, the failure of any one member thereof to perform
its obligations hereunder shall not excuse or affect the obligations of any
other member thereof, and the closing of the purchases from such other members
by the Company shall not excuse, or constitute a waiver of its rights against,
the defaulting member.
5. Certain Limitations on the Company's Obligations to Purchase Common
Units.
5.1 Deferral of Purchases.
(a) Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not be obligated to purchase any Common Units at
any time pursuant to Section 4, regardless of whether it has delivered a notice
of its election to purchase any such Common Units, (i) to the extent that the
purchase of such Common Units (together with any other purchases of Common Units
pursuant to Section 4 of other management Option Agreements or the Management
Common Unit Subscription Agreements) would result (A) in a violation of any law,
statute, rule, regulation, order, writ, injunction, decree or judgment
promulgated or entered by any federal, state, local or foreign court or
governmental authority applicable to the Company or any of its subsidiaries or
any of its or their material property (which violation is material to the
Company, its directors or members or the repurchase of units) or (B) after
giving effect thereto, in a Financing Default, or (ii) if immediately prior to
such purchase there exists a Financing Default which prohibits such purchase.
The Company shall within fifteen days of learning of any such fact so notify the
members of the Executive Group that it is not obligated to purchase units
hereunder.
(b) Notwithstanding anything to the contrary contained in Section 4,
any Common Units which a member of the Executive Group has elected to sell to
the Company or which the Company has elected to purchase from members of the
Executive Group, but which in accordance with Section 5.1(a) are not purchased
at the applicable time provided in Section 4, shall to the extent then owned by
the Executive Group be purchased by the Company on or prior to the fifteenth day
after such date or dates that it is no longer prohibited from purchasing such
units under Section 5.1(a) (after taking into account any purchases to be made
at such time pursuant to the agreements with other Management Option Holders),
and the Company shall give the members of the Executive Group five days prior
notice of any such purchase.
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5.2 Payment for Common Units. If at any time the Company elects or
is required to purchase any Common Units pursuant to Section 4, the Company
shall pay the purchase price for the Common Units it purchases (i) first, by the
cancellation of indebtedness, if any, owing from Executive to the Company or any
of its subsidiaries (which indebtedness shall be applied pro rata against the
proceeds receivable by each member of the Executive Group receiving
consideration in such repurchase) and (ii) then, by the Company's delivery of a
check or wire transfer of immediately available funds for the remainder of the
purchase price, if any, against delivery of the certificates or other
instruments representing the Common Units so purchased, duly endorsed; provided
that if any of the conditions set forth in Section 5.1(a) exists which prohibits
such cash payment, the portion of the cash payment so prohibited may be made, to
the extent such payment is not prohibited, by the Company's delivery of an
unsecured subordinated promissory note (which shall be subordinated and subject
in right of payment only to the prior payment of any debt outstanding under the
Senior Financing Agreements and any modifications, renewals, extensions,
replacements and refunding of all such indebtedness) of the Company (a
"Repurchase Note") in a principal amount equal to the balance of the purchase
price, payable in up to five equal annual installments commencing on the first
anniversary of the issuance thereof and bearing interest payable annually at the
publicly announced prime rate of Chase Bank, on the date of issuance and each
June 30 and December 31 thereafter; and, provided further, that in the case of a
purchase pursuant to either (A) Section 4.1(a), or (B) any of Sections
4.2(a)(iii) or 4.2(a)(iv), the Company may elect to deliver a Repurchase Note in
a principal amount equal to all or a portion of the cash purchase price (in lieu
of paying such portion of the purchase price in cash), which Repurchase Note
shall mature on the fifth anniversary of its issuance, require principal
payments to be made in five equal, annual installments and bear interest payable
annually at the publicly announced prime rate of Chase Bank on the date of
issuance and each June 30 and December 31 thereafter. The Company shall have the
right set forth in clause (i) of the first sentence of this Section 5.2 whether
or not the member of the Executive Group selling such Option Units is an obligor
of the Company.
6. Miscellaneous.
6.1 Tax Withholding. Whenever Common Units are to be issued pursuant
to the exercise of an Option or any cash payment is to be made hereunder or
under the Limited Liability Company Agreement, the Company shall have the power
to withhold, or require Executive to remit to the Company in cash or offset
against any amounts otherwise payable Executive, an amount sufficient to satisfy
all Federal, state, local and foreign withholding tax requirements relating to
such transaction, and the Company may defer payment of cash or issuance of
Common Units until such requirements are satisfied.
6.2 Transfers to Permitted Transferees. The Executive may transfer
Options only upon his death pursuant to applicable laws of descent and
distribution and may transfer Common Units only as contemplated by the Limited
Liability Agreement and clauses (f) and (g) of the definition of "Exempt
Employee Transfers" as defined in the Securityholders Agreement. Prior to any
transfer of Common Units, Executive shall deliver to the Company a written
agreement of the proposed transferee (a) evidencing such Person's undertaking to
be bound by the terms of this Agreement and (b) acknowledging that Common Units
transferred to such Person will continue to be Common Units for purposes of this
Agreement in the hands of such Person. Any transfer or attempted transfer of
Common Units in violation of any provision of this Agreement, the Limited
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Liability Company Agreement or the Securityholders Agreement shall be void, and
the Company shall not record such transfer on its books or treat any purported
transferee of such Common Units as the owner of such Common Units for any
purpose.
6.3 Recapitalizations, Exchanges, Etc., Affecting Common Units. The
number, class and Exercise Price of any outstanding Options (and the number of
Common Units subject to outstanding Options) shall be adjusted by the Management
Committee if, in its good faith judgment, it shall deem such an adjustment to be
necessary or appropriate to reflect any transaction involving the Common Units
having the same effect as a stock dividend, stock split, stock issuance or
reverse stock split or any combination, recapitalization, reclassification,
merger, consolidation or other reorganization. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to Options, Common
Units, and all other equity interests or options to acquire equity interests of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution of the Common Units, by reason of any stock
dividend, stock split, stock issuance, reverse stock split, combination,
recapitalization, reclassification, merger, consolidation or otherwise. Nothing
contained in this Agreement shall prohibit or restrict the Company from
reorganizing into a corporation or other entity or otherwise recapitalizing in
connection with a Sale of the Company or Public Offering of the Company's equity
interests. Each member of the Executive Group shall cooperate with, and take all
actions requested by, the Company in effecting such a reorganization. In the
event that the Company is reorganized as a corporation (or the interests in the
Company are transferred to a corporation) (a "Reorganization"), Executive shall
cooperate with such Reorganization. In the event of a Reorganization, the
Company's successor or its new parent entity may substitute an option to
purchase its stock (with substantially equivalent economic terms as this
Agreement) for this Agreement, and Executive will execute such documents as are
required to evidence such substitution.
6.4 Requirements of Law. The issuance of Common Units shall be
subject to all applicable laws, rules and regulations and to such approvals by
any governmental agencies or national securities exchanges or quotation systems
as may be required. The Company will be under no obligation to issue, sell or
transfer any Common Units upon Executive's election to exercise any Options
granted hereunder if such issuance, sale or transfer would, in the reasonable
opinion of the Company, result in a violation of applicable law, including the
federal securities laws. The Company shall use commercially reasonable efforts
to obtain the approvals referred to in this Section 6.4 and otherwise to permit
any such issuance, sale or transfer of Common Units to comply with applicable
law; provided, however, that the Company shall not have any obligation to
register the Common Units or otherwise take any other action to make available
any exemption from the registration requirements of any federal or state
securities law to permit the issuance, sale or transfer of such Common Units.
6.5 Executive's Employment by the Company. Nothing contained in this
Agreement shall be deemed to obligate the Company or any subsidiary of the
Company to employ Executive in any capacity whatsoever or to prohibit or
restrict the Company (or any such subsidiary) from terminating the employment of
Executive at any time or for any reason whatsoever, with or without Cause.
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6.6 No Rights as Equity Holder. Except as otherwise required by law,
Executive shall not have any rights as an equity holder with respect to any
Common Units until such time as the Common Units have been so issued.
6.7 Administration by Management Committee. This Option Agreement
shall be administered by the Management Committee, which shall have full power
and authority to construe and administer this Agreement as it may deem
advisable. Any action taken under the provisions of this Agreement by the
Management Committee in connection with the administration of this Agreement
shall be, in each case, within the sole discretion of the Management Committee
and conclusive and binding upon the Company, Executive, all beneficiaries of
Executive, and all persons and entities having any interest therein.
6.8 Binding Effect. The provisions of this Agreement shall be
binding upon and accrue to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that no transferee shall derive any rights under this Agreement unless
and until such transferee has executed and delivered to the Company a valid
undertaking and becomes bound by the terms of this Agreement.
6.9 Amendment; Waiver. This Agreement may be amended only by a
written instrument signed by the parties hereto. No waiver by any party hereto
of any of the provisions hereof shall be effective unless set forth in a writing
executed by the party so waiving.
6.10 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without regard to the conflicts of law principles thereof.
6.11 Jurisdiction. Any suit, action or proceeding with respect to
this Agreement, or any judgment entered by any court in respect thereof, shall
be brought in any court of competent jurisdiction in the State of New York, and
each of the Company and the members of the Executive Group hereby submits to the
exclusive jurisdiction of such courts for the purpose of any such suit, action,
proceeding or judgment. Each of the members of the Executive Group and the
Company hereby irrevocably waives any objections which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Agreement brought in any court of competent jurisdiction in
the State of New York, and hereby further irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in
any inconvenient forum.
6.12 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given when personally
delivered, telecopied (with confirmation of receipt), two days after deposit
with a reputable overnight delivery service (charges prepaid) and three days
after deposit in the U.S. Mail (postage prepaid and return receipt requested) to
the address set forth below or such other address as the recipient party has
previously delivered notice to the sending party.
-12-
(a) If to the Company:
Remington Products Company, L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
and
Remington Products Company, L.L.C.
c/o Vestar Equity Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Executive, to the address as shown on the equity interest
register of the Company.
6.13 Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof and
thereof. There are no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
6.14 Counterparts. This Agreement may be executed in separate
counterparts each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
6.15 Injunctive Relief. The Executive and Executive's Permitted
Transferees each acknowledges and agrees that a violation of any of the terms of
this Agreement will cause the Company irreparable injury for which adequate
remedy at law is not available. Accordingly, it is agreed that the Company shall
be entitled to an injunction, restraining order or other equitable relief to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court of competent jurisdiction in the
United States or any state thereof, in addition to any other remedy to which it
may be entitled at law or equity.
-13-
6.16 Rights Cumulative; Waiver. The rights and remedies of Executive
and the Company under this Agreement shall be cumulative and not exclusive of
any rights or remedies which either would otherwise have hereunder or at law or
in equity or by statute, and no failure or delay by either party in exercising
any right or remedy shall impair any such right or remedy or operate as a waiver
of such right or remedy, nor shall any single or partial exercise of any power
or right preclude such party's other or further exercise or the exercise of any
other power or right. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by either party to exercise any
right or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
* * * * *
-14-
IN WITNESS WHEREOF, the parties have executed this Option Agreement
as of the date first above written.
REMINGTON PRODUCTS COMPANY, L.L.C.
By:__________________________
Name:
Title:
__________________________
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-15-
SCHEDULE I
Options
--------------------------------------------------------------------------------
AGGREGATE
NUMBER OF OPTIONS EXERCISE PRICE EXERCISE PRICE
--------------------------------------------------------------------------------
Common Units equaling The same price per Common $162,327
2%of the Common Units on a Unit paid at the original
fully-diluted basis* closing
--------------------------------------------------------------------------------
* The maximum number of Common Units to be acquired under the Options shall be
adjusted at the first anniversary of the Grant Date so that the number will be
2% of the Common Units on a fully-diluted basis on that date taking into account
(1) any issuances of options or Common Units to executives who become employed
by the Company and (2) repurchases (or cancellations) of options or Common Units
from executives whose employment with the Company is terminated, in each case
prior to the first anniversary of the Grant Date. Any other changes in ownership
of the Common Units shall be ignored for purposes of the adjustment.
-16-
CONSENT OF SPOUSE
The undersigned spouse of Executive hereby acknowledges that I have
read the foregoing Option Agreement (the "Agreement") and that I understand its
contents. I am aware that the Agreement provides for the repurchase of the early
termination of the Options (as defined in the Agreement) under certain
circumstances, Common Units (as defined in the Agreement) issuable upon exercise
of the Options and imposes other restrictions on the transfer of such Options
and Common Units. I agree that my spouse's interest in the Options and the
Common Units is subject to the Agreement and any interest I may have in such
Options and Common Units shall be irrevocably bound by the Agreement and further
that my community property interest, if any, shall be similarly bound by the
Agreement.
I am aware that the legal, financial and other matters contained in
the Agreement are complex and I am free to seek advice with respect thereto from
independent counsel. I have either sought such advice or determined after
carefully reviewing the Agreement that I will waive such right.
Name:______________________________
Print Name:________________________
___________________________________
Witness
-17-
EXHIBIT A
_________, ____
ELECTION TO INCLUDE STOCK IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased Common Units (the "Units") of Remington
Products Company, L.L.C., a Delaware limited liability company (the "Company"),
on , . Under certain circumstances, the Company has the right to repurchase the
Units at cost from the undersigned (or from the holder of the Units, if
different from the undersigned) should the undersigned cease to be employed by
the Company and its subsidiaries. Hence, the Units are subject to a substantial
risk of forfeiture and are nontransferable within the meaning of Section 83 of
the Internal Revenue Code, as amended (the "Code"). The undersigned desires to
make an election to have the Units taxed under the provision of Code ss. 83(b)
at the time the undersigned purchased the Units.
Therefore, pursuant to Code ss.83(b) and Treasury Regulation
ss.1.83-2 promulgated thereunder, the undersigned hereby makes an election, with
respect to the Units (described below), to report as taxable income for calendar
year the excess (if any) of the Units' fair market value on , over the purchase
price thereof.
The following information is supplied in accordance with Treasury
Regulation ss.1.83-2(e):
1. The name, address and social security number of the undersigned:
______________________________
______________________________
SSN:__________________________
2. A description of the property with respect to which the election
is being made: _______ Common Units of the Company.
3. The date on which the property was transferred: ________, _____.
The taxable year for which such election is made: calendar____ .
4. The restrictions to which the property is subject: If the
undersigned ceases to be employed by the Company or any of its subsidiaries as a
result of the undersigned's resignation during the first five years after the
grant of options that the undersigned exercised to acquire the Units, all of the
Units are be subject to repurchase by the Company at cost.
-18-
5. The fair market value on ________, _____ of the property with
respect to which the election is being made, determined without regard to any
lapse restrictions: $__________ per Common Unit.
6. The amount paid for such property: $___________ per Common Unit.
A copy of this election has been furnished to the Secretary of the
Company pursuant to Treasury Regulations ss.1.83-2(e)(7).
Dated: ________, _____ __________________________________
[Name]