EXHIBIT 10.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "AGREEMENT") by and between, The Dial
Corporation, a Delaware corporation (the "COMPANY"), and [insert name] (the
"EXECUTIVE"), dated as of the 14th day of December, 2003.
WHEREAS, the Executive is currently serving as the [Title] of the
Company;
WHEREAS, on the date hereof, the Company entered into an Agreement and
Plan of Merger (the "MERGER AGREEMENT") by and among the Company, ▇▇▇▇▇▇ KgaA, a
Kommanditgesellschaft auf Aktien (a partnership limited by shares) organized
under the laws of the Federal Republic of Germany ("Henkel"), and Henkel Merger
Corporation, a Delaware company and indirect wholly owned subsidiary of Henkel
("HENKEL SUB"), pursuant to which, at the Effective Time (as defined in the
Merger Agreement), Henkel Sub will be merged with and into the Company, with the
Company continuing as the surviving corporation to the merger, in accordance
with the terms of the Merger Agreement (the "Merger");
WHEREAS, the Company and the Executive each desire to provide for the
Executive's continued employment by the Company following the Effective Time;
WHEREAS, this Agreement is conditional upon the Company, Henkel and the
Executive entering into a change in control letter agreement dated as of the
date hereof (the "LETTER AGREEMENT"); and
WHEREAS, unless specified otherwise, capitalized terms used herein without
definition shall have the meanings assigned thereto in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties agree as follows:
1. Agreement to Continue Employment; Term. (a) Subject to, and
effective as of the Effective Time of, the consummation of the Merger pursuant
to the Merger Agreement, the Company hereby agrees to continue the employment of
the Executive, and the Executive hereby agrees to such continued employment, in
each such case, on the terms and conditions provided herein. In the event that
(i) prior to the Merger, the Merger Agreement is terminated in accordance with
its terms or (ii) the Company engages in a transaction, other than the Merger,
which constitutes a "Change of Control" (as defined in the Change of Control
Agreement, dated as of [insert date], between the Company and the Executive (the
"CIC AGREEMENT")), the terms of this Agreement shall be null, void and of no
effect ab initio.
(b) The term of employment of the Executive by the Company hereunder
shall be for a period commencing at the Effective Time and ending on the earlier
of the second
1
anniversary of the Effective Time (the "FINAL DATE") or the Date of Termination
(as defined herein) (the "TERM").
2. Nature of Duties. During the Term, the Executive shall serve as
[insert title] of the Company and shall have such duties and responsibilities as
are customarily assigned to persons acting in such capacity and such other
duties and responsibilities consistent with his or her position and title, as
may be determined by the Board of Directors of the Company (the "BOARD"). During
the Term, and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to the
Executive hereunder, to use the Executive's reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the Employment Period
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 and (C) manage
personal investments, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
3. Place of Performance. The Executive shall be based at the
principal executive offices of the Company in the city of Scottsdale, Arizona,
except for required business travel.
4. Compensation.
(a) Annual Base Salary. During the Term, the Executive shall
receive an annual base salary of $[ ] (the "Annual Base Salary"), which shall be
paid in conformity with the Company's policies relating to salaried employees.
The Executive shall be eligible for periodic salary increases, but not
decreases, as determined in the sole discretion of the Board. Unless increased
by the Board in its sole discretion, the Annual Base Salary shall apply for each
year during the Term. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this Agreement. The
Annual Base Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Agreement shall refer to Annual Base
Salary as so increased.
(b) Annual Bonus. Except as provided herein, for each fiscal
year ending during the Term, the Executive shall be eligible to participate in
such bonus programs as are available to senior executives of the Company. The
terms and conditions of such bonus opportunities shall be established by the
Board; provided, however, that the aggregate targeted payout level for
achievement of the Executive's annual incentive performance objectives shall be
no less than [ ]% of the Executive's Annual Base Salary for such fiscal year.
Each such annual bonus (the "Annual Bonus") shall be paid no later than the end
of the third month of the fiscal year next following the fiscal year for which
the Annual Bonus is awarded, unless the Executive shall elect to defer the
receipt of such Annual Bonus. The amount of any 2004 Annual Bonus shall be
decreased by any part thereof that is paid in connection with the Merger.
2
(c) Long-Term Incentive Plan. The Executive shall be eligible
to participate, from and after the Effective Time, in a cash-based long term
incentive plan (the "LTIP") which shall provide benefits to the Executive that
are no less favorable to the Executive than the benefits provided to similarly
situated employees of the U.S. operations of Henkel from time to time.
(d) Other Benefits. During the Term, the Executive (i) shall
be entitled to participate in all employee benefit plans which are generally
available to the Company's senior executives (subject to, and on a basis
consistent with, the terms, conditions and overall administration of such plans,
programs and arrangements); (ii) shall receive pension benefits and supplemental
executive retirement benefits which are generally available to other senior
executives of the Company; and (iii) shall receive health insurance programs,
executive medical benefits and retiree medical benefits (until at least 30 days
after the Final Date), life insurance and accidental death and dismemberment
benefits (collectively, "WELFARE BENEFITS" and together with the benefits
provided under the foregoing clauses (i) and (ii), the "BENEFITS") which are
generally available to other senior executives of the Company; provided that the
aggregate benefits and compensation provided to the Executive pursuant to this
Section 4 shall be substantially comparable, in the aggregate, to the aggregate
compensation and employee benefits (other than equity based compensation or
benefits) provided to the Executive immediately prior to the Effective Time.
(e) Fringe Benefits. During the Term, the Executive shall be
entitled to fringe benefits generally available to other senior executives of
the Company, but in all events those that were provided to the Executive
immediately prior to the Effective Time, including, without limitation, payment
of expenses for executive financial planning, health club dues and expenses
related to an annual physical, in each case, in line with the Executive's
historical practices, use of a Company laptop and cell phone and payment of
related expenses.
(f) Reimbursement for Expenses. During the Term, the Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive in accordance with the Company's policies, practices
and procedures.
(g) Office and Support Staff. During the Term, the Executive
shall be provided with an office and with such secretarial and other support
facilities on the same basis as provided to the Executive immediately prior to
the Effective Date.
(h) Vacation. During the Term, the Executive shall be entitled
to no less than four weeks paid vacation in accordance with the plans, policies,
programs and practices of the Company as in effect for the Executive immediately
prior to the Effective Time.
(i) Insurance; Indemnification. During the Term and thereafter
while the Executive could have any liability, the Executive shall be named as an
insured party in any liability insurance policy (including any director and
officer liability policy) maintained by the Company for its directors and/or
senior executive officers. In addition, the Company shall, as set
3
forth in its respective charter and/or by-laws, or in a separate indemnification
agreement, indemnify the Executive to the fullest extent permitted under
Delaware law. The Company shall also indemnify the Executive, to the extent
permitted by law, with respect to public service activities and charitable or
committee memberships he or she undertakes in accordance with Section 2.
(j) Outplacement Services. From the Effective Time to the
Final Date, the Company shall, at its sole expense as incurred, provide the
Executive with outplacement services (the scope and provider of which shall be
selected by the Executive in his or her sole discretion, except that the
provider must be reasonably acceptable to the Company) upon termination of the
Executive's employment by the Company, other than for Cause (as defined herein)
or Disability (as defined herein), or by the Executive for Good Reason (as
defined herein).
(k) Special Benefits. Notwithstanding the expiration of the
Term on the Final Date or any earlier expiration of the Term,
(i) during the period beginning on the Final Date or, if
earlier, the Date of Termination (such date, the "BEGINNING
DATE") and ending on the three year anniversary of the
Effective Time (the "EXTENDED PERIOD"), the Executive (and his
or her eligible dependents) shall be entitled to receive
continued Welfare Benefits to the extent provided to other
peer executives who are actively employed by the Company
during such period; provided that (i) such benefits are at
least equal in the aggregate to those provided to the
Executive immediately prior to the Beginning Date and (ii) if
the Executive becomes employed by another employer and is
eligible to receive medical and other welfare benefits under
another employer provided plan, the Welfare Benefits described
herein shall be secondary to those provided under such other
plan during such applicable period of eligibility. For
purposes of determining eligibility (but not the time of
commencement) of the Executive for retiree benefits pursuant
to the plans, practices, programs and policies of the Company,
the Executive shall be considered to have remained employed
with the Company during the Extended Period and to have
retired on the last day of such period; and
(ii) the Company shall pay to the Executive in a lump sum in
cash within 15 days of the Beginning Date, an amount equal to
(x) the present value of the Executive's accrued benefits
under The Eagle Retirement Income Plan and The Eagle
Supplemental Pension Plan, or successor plans, in which the
Executive was participating at the Effective Time
(collectively, the "PENSION PLANS"), determined after giving
effect to a period of additional years of pension credit under
the Pension Plans equal to the Extended Period and assuming
the Executive's age is the age he or
4
she would have obtained as of the last day of the Extended
Period, less (y) the present value of the Executive's accrued
benefits under the Pension Plans at the Beginning Date,
determined without regard to any additional years of age or
pension service credit. Such present value shall be determined
using actuarial assumptions and discount rates consistent with
the Company's practice for financial reporting purposes in
effect immediately prior to the Beginning Date.
The continued Welfare Benefits, the period for determining eligibility for
retiree benefits referred to in Section 4(k)(i) and present value payment
referred to in Section 4(k)(ii) are referred to collectively as the "SPECIAL
BENEFITS."
5. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Term. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Term (pursuant to the definition of Disability set forth
below), it may give to the Executive written notice in accordance with Section
15(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "DISABILITY EFFECTIVE DATE"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"DISABILITY" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
reasonably acceptable to the Executive or the Executive's legal representative.
(b) By the Company.
(i) Without Cause. The Company may terminate the Executive's
employment during the Term without Cause.
(ii) For Cause. The Company may terminate the Executive's
employment during the Term for Cause. For purposes of this
Agreement, "CAUSE" shall mean:
(1) the Executive's conviction of, or plea of nolo
contendere to, any felony (other than vicarious
liability which results solely from Executive's
position with the Company, provided that Executive
did not know, or should not have known, of any act
or failure to act upon which such conviction or
plea is based, or knew, but acted on the advice of
counsel);
5
(2) the Executive's willful misconduct with regard to
the Company having a material and demonstrable
adverse effect on the Company;
(3) the Executive's willful failure to perform the
services to be rendered hereunder (except in the
event of the Executive's incapacity due to mental
or physical illness) after receipt of written
notice from the Board and a reasonable opportunity
for the Executive to cure such willful
non-performance; or
(4) the Executive's failure to adhere to, or take
affirmative steps to carry out, any legal and
proper directive of the Board, after receipt of
written notice from the Board and a reasonable
opportunity to cure such non-adherence or failure
to act.
The termination of Executive's employment shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in subparagraph (1), (2), (3) or (4) above, and
specifying the particulars thereof in reasonable detail. For purposes of this
Agreement, any act, or failure to act, on the Executive's part shall not be
considered willful if done, or omitted to be done, by the Executive in good
faith and in the reasonable belief that the Executive's act or failure to act
was in the Company's best interests. Any act, or failure to act, based upon
authority granted pursuant to a duly adopted Board resolution or advice of
counsel shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the Company's best interests.
(c) By the Executive.
(i) Without Good Reason. The Executive may terminate
employment under this Agreement by giving Notice of
Termination (as defined below) to the Company in accordance
with Section 15(b) of this Agreement no less than 15 days
prior to such termination, unless such termination is pursuant
to Section (5)(c)(ii) below, or the Company elects to waive or
reduce such notice requirement.
(ii) With Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of
this Agreement, "GOOD REASON" shall mean:
6
(1) a decrease in Annual Base Salary, Annual Bonus or
LTIP benefits below the amounts specified in
Section 4(a), 4(b) and 4(c), respectively;
(2) any material diminution of aggregate benefits
described in Sections 4(d), (f), (g), and (h) of
this Agreement;
(3) the relocation of the Executive's principal place
of employment to a location more than 35 miles
from the Company's Scottsdale, Arizona
headquarters;
(4) any material breach by the Company of this
Agreement.; or
(5) any failure by the Company to comply with and
satisfy Section 11(c) of this Agreement.
The termination of the Executive's employment by the Executive shall not be
deemed to be for Good Reason unless and until the Executive shall have delivered
to the Company written notice of his or her election to terminate for Good
Reason, which notice must be delivered within 90 days of the Executive becoming
aware of the facts or circumstances claimed to provide the basis for such
termination and otherwise comply with Section 5(d), and the Company fails to
cure such facts and circumstances to the reasonable satisfaction of the
Executive within twenty (20) days following receipt of such notice.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 15(b) of
this Agreement. For purposes of this Agreement, a "NOTICE OF TERMINATION" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive' s employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than 30
days after the giving of such notice unless otherwise agreed by the parties
hereto). The failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(e) Date of Termination. "DATE OF TERMINATION" means (i) if
the Executive's employment is terminated by the Company for Cause, the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be, (ii) if the Executive's employment is terminated by the Company
other than for Cause or Disability or by the Executive without Good Reason, the
Date of Termination shall be the date on which the
7
Company notifies the Executive of such termination or 30 days after the date on
which the Executive notifies the Company of such termination (or such earlier
date if approved by the Company), respectively, (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be, and (iv) if the Executive's employment is
terminated by the Executive for Good Reason, the Date of Termination shall be 30
days after the date on which the Executive notifies the Company of such
termination provided that the Company fails to cure the facts and circumstances
that the Executive claims provide the basis for such termination in accordance
with Section 5(c).
6. Obligations of the Company upon Termination
(a) Good Reason; Other Than for Cause or Disability. If,
during the Term, the Company terminates the Executive's employment other than
for Cause or Disability or the Executive shall terminate employment for Good
Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 30 days after the Date of Termination an amount
equal to the sum of: (1) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore
paid; (2) any bonus earned during the prior fiscal year but
not yet paid to Executive; and (3) any compensation previously
deferred by the Executive (together with any accrued interest
or earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2) and (3) shall be
hereinafter referred to as the "ACCRUED OBLIGATIONS") , plus
the product of (x) the full target bonus with respect to the
fiscal year in which the Date of Termination occurs and (y) a
fraction, the numerator of which is the number of days in the
fiscal year that includes the Date of Termination that have
elapsed as of such date and the denominator of which is 365
(the "PRO RATA BONUS");
(ii) the Company shall pay to the Executive in a lump sum, in
cash, his or her Annual Base Salary for the period commencing
on the Date of Termination and ending on the Final Date (the
"SEVERANCE PROTECTION PERIOD");
(iii) the Company shall pay to the Executive his or her Annual
Bonus for the fiscal year of the Company that includes the
Date of Termination (the "RELEVANT FISCAL YEAR"), the amount
of such Annual Bonus to be determined pursuant to Section 4(b)
hereof and paid to the Executive at the same time that annual
bonuses are paid to then active senior executives of the
Company for the Relevant Fiscal Year;
8
(iv) within 30 days after the Date of Termination, the Company
shall pay to the Executive an amount equal to the product of
(x) his or her target bonus for the Relevant Fiscal Year
multiplied by (y) a fraction, the numerator of which equals
the number of days in the Severance Protection Period
beginning after the last day of the Relevant Fiscal Year and
ending on the last day of the Severance Protection Period, and
the denominator of which equals 365;
(v) the Executive shall continue to be eligible to receive
Benefits for the Severance Protection Period; and
(vi) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which
the Executive is eligible to receive under any plan, program,
policy or practice or contract or agreement of the Company,
including without limitation the Special Benefits (such other
amounts and benefits shall be hereinafter referred to as the
"OTHER BENEFITS").
(b) Death. If the Executive's employment is terminated by
reason of the Executive's death during the Term, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination.
(c) Disability. If the Executive `s employment is terminated
by reason of the Executive's Disability during the Term, this Agreement (other
than the provisions of Sections 9, 10 and 13) shall terminate without further
obligations to the Executive, other than for payment of Accrued Obligations and
the timely payment or provision of Other Benefits. Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the Date of
Termination.
(d) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated for Cause during the Term or if Executive
voluntarily terminates employment during the Term (excluding a termination for
Good Reason), this Agreement (other than the provisions of Sections 9, 10 and
13) shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive (i) his or her Annual Base Salary through the
Date of Termination, (ii) the amount of any compensation previously deferred by
the Executive, and (iii) Other Benefits, in each case to the extent theretofore
unpaid.
(e) Expiration of Term. Upon expiration of the Term or, if
later, the termination of the Executive's employment for any reason, the
Executive will receive the Accrued Obligations, Other Benefits and Pro Rata
Bonus.
9
7. Non-Exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company and for which the Executive
may qualify, nor shall anything herein limit or otherwise affect such rights as
the Executive may have under any contract or agreement with the Company, other
than the CIC Agreement, as defined herein. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
8. Entire Agreement. This Agreement, together with the Letter
Agreement, dated as of the date hereof, among the Executive, the Company and
Henkel, contain the sole and entire agreement and understanding of the parties
with respect to the subject matters contained herein, and the parties agree that
this Agreement supercedes the CIC Agreement, except for the Surviving Provisions
(as defined in the Letter Agreement), and that the CIC Agreement (but not the
Surviving Provisions) is rendered null and void as of the Effective Time.
9. Confidentiality; Cooperation with Regard to Litigation.
(a) While employed by the Company and thereafter, the
Executive shall not, without the prior written consent of the Company, disclose
to anyone (except in good faith in the ordinary course of business to a person
who will be advised by the Executive to keep such information confidential) or
make use of any Confidential Information (as defined below) except in the
performance of his or her duties hereunder, or when required to do so by legal
process by any governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative body (including
a committee thereof) or judicial authority that requires him to divulge,
disclose or make accessible such Confidential Information. In the event that the
Executive is so ordered, he shall give prompt written notice to the Company to
allow the Company the opportunity to object to or otherwise resist such order.
(b) "CONFIDENTIAL INFORMATION" shall mean all information
concerning the business of Henkel or any Subsidiary (as defined below) relating
to any of their products, product development, trade secrets, customers,
suppliers, finances, and business plans and strategies. Excluded from the
definition of Confidential Information is information that is or becomes part of
the public domain, other than through the breach of this Agreement.
(c) "SUBSIDIARY" shall mean any corporation controlled
directly or indirectly by Henkel, including the Company and its subsidiaries.
(d) While employed by the Company and thereafter, the
Executive agrees to cooperate with the Company by making himself reasonably
available to testify on behalf of Henkel or any Subsidiary in any action, suit,
or proceeding, whether civil, criminal, administrative, or investigative, and to
assist Henkel or any Subsidiary in any such action, suit, or proceeding by
providing information and meeting and consulting with representatives of or
10
counsel to Henkel or any Subsidiary, as reasonably requested with regard to
matters that relate to the Executive's employment period as an officer of the
Company; provided, however, that the same does not materially interfere with the
Executive's then current professional activities, involve a conflict between the
Executive and Henkel or any Subsidiary or would cause a violation of any court
order or governmental requirement. The Company agrees to reimburse the
Executive, on an after-tax basis, for all reasonable expenses actually incurred
in connection with his or her provision of testimony or assistance, including
reasonable legal fees.
10. Non-competition and Non-solicitation.
(a) While employed by the Company or any Affiliate thereof and
during the Applicable Restricted Period (as defined below), the Executive shall
not engage in Competition with the Company or any subsidiary thereof.
"Competition" shall mean engaging in any activity, except as provided below, for
a Competitor of the Company or any subsidiary thereof, whether as an employee,
consultant, principal, agent, officer, director, partner, shareholder (except as
a less than three percent shareholder of a publicly traded company) or otherwise
(together "EMPLOYMENT"). A "COMPETITOR" shall mean any corporation or other
entity that derives at least 15% or more of its revenues, directly or
indirectly, from the conduct of any business anywhere in the world which
competes with the business conducted by the Company or any subsidiary thereof,
as determined on the Date of Termination of the Executive's employment. If the
Executive commences Employment with any entity that is not a Competitor at the
time the Executive initially becomes employed or becomes a consultant,
principal, agent, officer, director, partner, or shareholder of the entity,
future activities of such entity shall not result in a violation of this
provision unless (i) such activities were contemplated by the Executive at the
time the Executive initially commenced Employment or (ii) the Executive
commences directly or indirectly overseeing or managing the activities of an
entity which becomes a Competitor during the Applicable Restricted Period, which
activities are competitive with the activities of the Company or any subsidiary
thereof. In addition, the Executive may be employed by, or otherwise associated
with, noncompeting portions of the competing entity so long as he does not
directly or indirectly oversee, manage or contribute to the competing activities
of the Competitor. The Executive shall not be deemed to be indirectly
overseeing, managing or contributing to the Competitor's activities which are
competitive with the activities of the Company or any subsidiary thereof so long
as he does not participate in any discussions with regard to the conduct of, or
take any act intended to facilitate the success of, the competing business.
(b) Notwithstanding the foregoing Section 10(a), in the event
the Executive desires to accept Employment with a Competitor which, in the
Executive's reasonable judgment, competes with an insignificant portion of the
business conducted by the Company or any subsidiary thereof, the Executive shall
have the right, prior to accepting such Employment, to submit a written request
to the Company for a limited waiver of the Company's right to enforce the
provisions of this Section 10. If the Company determines, in its good faith
reasonable judgment, that the Executive's proposed Employment with the
Competitor would not
11
result in more than an insignificant level of competition with the business
conducted by the Company or any subsidiary thereof at either the time such
request is made or in the then foreseeable future, the Company shall grant the
Executive the requested waiver.
(c) While employed by the Company or any Affiliate thereof,
the Executive shall not induce employees of the Company or any subsidiary
thereof to terminate their employment, nor shall the Executive solicit or
encourage any corporation or other entity in a joint venture relationship,
directly or indirectly, with the Company or any subsidiary thereof, to terminate
or diminish their relationship with the Company or any subsidiary thereof or to
violate any agreement with any of them. During such period, the Executive shall
not hire, either directly or through any employee, agent or representative, any
employee of the Company or any subsidiary thereof or any person who was employed
by the Company or any subsidiary thereof within 90 days of such hiring.
(d) The Executive's compliance with the non-competition and
non-solicitation provisions of this Section 10 shall be deemed compliance with
any other non-competition or non-solicitation provision agreed to between the
Executive and the Company.
(e) For purposes of this Section 10, the term "APPLICABLE
RESTRICTED PERIOD" means:
(i) in the event of any termination of the Executive's
employment by the Executive for Good Reason or by the Company
other than for Cause, the period (i) from the Date of
Termination through the Final Date, provided that the
Executive is in timely receipt of the compensation payable
pursuant to Section 6(a)(ii) hereof in connection with such
period, and (ii) if elected by the Company in accordance with
this Section 10(e) and provided the Company makes a lump sum
cash payment to the Executive, within 3 business days
following any such election, of an amount equal to the
Executive's Annual Base Salary and the full target bonus with
respect to the fiscal year in which the Date of Termination
occurs (the "ELECTION PAYMENT"), the one year period following
the Final Date;
(ii) in the event of the termination of the Executive's
employment by the Company for Cause or by the Executive, other
than a termination by the Executive for Good Reason, if
elected by the Company in accordance with this Section 10(e)
and provided the Company makes a lump sum cash payment of the
Election Payment to the Executive, within 3 business days
following any such election, the one year period following the
Date of Termination; and
(iii) in the event of the termination of the Executive's
employment for any reason at the Final Date, if elected by the
Company in accordance
12
with this Section 10(e) and provided the Company makes a lump
sum cash payment of the Election Payment to the Executive,
within 3 business days following any such election, the one
year period following the Final Date.
Any election by the Company pursuant to this Section 10 to impose the
restrictions of Section 10(a) on the Executive for the one year period described
in the applicable subparagraph above must be made by the Company, in writing,
within 5 business days after receipt by the Company of a Notice of Termination
from the Executive, in the case of any such termination by the Executive, at the
time the Company notifies the Executive of the Company's termination of the
Executive, in the case of any such termination by the Company, or within 5
business days of the Final Date, in the case of the termination of the
Executive's employment on the Final Date, which ever is applicable.
11. Successors.
(a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise, provided however that the meaning of the term "Company" under
the provisions of Section 10 shall not extend to such successor other than the
Surviving Corporation, as defined in the Merger Agreement.
12. Full Settlement; No Mitigation; No Offset. 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 set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against the Executive or others. In the event of any
termination of employment, the Executive shall be under no obligation to seek
other employment, and amounts due the Executive under this Agreement shall not
be offset by any remuneration attributable to any subsequent employment that he
may maintain other than substantially comparable welfare benefits provided by a
new employer.
13. Remedies. If the Executive materially breaches any of the
provisions contained in Sections 9 or 10 above, the Company (a) shall have the
right to immediately
13
terminate all remaining severance payments and benefits due under Section
6(a)(i) through (v) of this Agreement and (b) shall have the right to seek
injunctive relief. The Executive acknowledges that such a breach of Sections 9
or 10 would cause irreparable injury and that money damages would not provide an
adequate remedy for the Company; provided, however, the foregoing shall not
prevent the Executive from contesting the issuance of any such injunction on the
ground that no violation or threatened violation of Sections 9 or 10 has
occurred.
14. Resolution of Disputes. Any controversy or claim arising out of
or relating to this Agreement or any breach or asserted breach hereof or
questioning the validity and binding effect hereof arising under or in
connection with this Agreement, other than seeking injunctive relief under
Section 13, shall be resolved by binding arbitration, to be held in Phoenix,
Arizona in accordance with the rules and procedures of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
15. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Arizona, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to each party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
[Insert name and address]
If to the Company:
The Dial Corporation
15501 North Dial Corporation
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to Henkel:
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: General Counsel
14
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such Federal, state, local or foreign taxes as shall be required
to be withheld pursuant to any applicable law or regulation.
(e) Agreement. The Executive's or the Company's failure to
insist upon strict compliance with any provision of this Agreement or the
failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to Section 5(c)(ii) of this Agreement, shall
not be deemed to be a waiver of such provision or right or any other provision
or right of this Agreement.
15
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board, the Company has caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.
THE DIAL CORPORATION
By:
--------------------------------------
Name:
Title:
Executive
By:
--------------------------------------
Name:
Title:
16