EXHIBIT 10.2
EARLY RETIREMENT AGREEMENT
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EARLY RETIREMENT AGREEMENT, dated as of August 1, 1995, by and between
TAMBRANDS INC., a Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxx
("Employee").
WHEREAS, Employee has expressed his intention to retire from employment
with the Company;
WHEREAS, Employee holds a position of significant importance to the
Company;
WHEREAS, Employee has provided loyal and valuable service to the Company
and the Company recognizes Employee's significant contribution to the Company
and its shareholders;
WHEREAS, the Company believes that it is in its best interest to retain the
services of Employee until the end of 1995; and
WHEREAS, Employee is willing to delay his early retirement and to remain
employed by the Company on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of their mutual promises, the Company and
Employee agree as follows:
1. Employment Period. Employee shall remain in the Company's employ from
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the date hereof until December 31, 1995 (the "Retirement Date"), at which time
he shall voluntarily retire from the Company. The period during which Employee
remains an employee hereunder shall be referred to as the "Employment Period".
2. Title and Responsibilities. During the Employment Period, Employee
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shall retain the title of Senior Vice President, Chief Financial Officer and
Chief Information Officer and shall have the responsibilities associated with
such title and his position as in effect immediately prior to the date hereof.
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3. Salary. During the Employment Period, the Company shall pay Employee a
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base salary at the same rate as was in effect immediately prior to the date
hereof, payable in installments at the same time and in the same manner as the
Company pays salary to executive employees located at its headquarters and
subject to all applicable deductions or reductions therein made pursuant to
Employee's elections under the Company's compensation plans or programs (the
"Applicable Reductions").
4. Bonus. If the Employee is employed on the Retirement Date, he shall
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be eligible to receive a bonus for 1995 services, as determined by the
Compensation Committee of the Board of Directors in accordance with the
applicable terms and conditions of the Annual Incentive Plan (the "AIP"). Any
such bonus shall be paid to Employee at the same time as bonuses are paid to
other executives under the AIP.
5. Employee Benefits. (a) Benefits as an Employee. Until the end of the
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Employment Period, the Company will provide Employee with coverage under the
employee benefit plans, policies and arrangements generally available to its
employees, including, but not limited to, participation in the Company's
qualified retirement plan and coverage under the Company's medical, dental, life
and disability insurance plans. Accrued vacation days which are unused as of
the end of the Employment Period shall be paid to Employee as soon as
practicable thereafter. Except as expressly provided in paragraph 5(b) below,
all other benefits shall, unless otherwise expressly provided herein or in the
relevant plan, policy or arrangement, cease as of December 31, 1995.
(b) Retirement Benefits. Following the Retirement Date, Employee shall be
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entitled to receive his accrued vested benefit under the Pension Plan for
Employees of Tambrands Inc. (the "Pension Plan") and under the formula in the
Company's Supplemental Executive Retirement Plan (the "SERP") which replicates
that formula contained in the Pension Plan but without regard to the limits
imposed under the Internal Revenue Code or ERISA on the amount of compensation
that may be taken into account in determining a participant's benefits (the
"Excess Formula"). Payment of any benefit under the Pension Plan or the SERP
shall be made in accordance with their respective terms (but based on the
assumption in the preceding sentence), and Employee shall have all rights of a
participant under the Pension Plan and the SERP, including all elections as to
the form of benefit, provided that if Employee is employed on the Retirement
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Date, solely for purposes of determining his eligibility to qualify for early
retirement with respect to the timing of payment of his benefits under the
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Excess Formula (and not for any other purpose), he shall also be deemed to have
completed 10 Years of Service and will therefore become a retiree of the
Company. If Employee remains in the Company's employ through the Retirement
Date, Employee shall also be eligible to receive the benefits made available to
retirees under the Company's retiree medical and retiree life insurance
programs, and subject to the generally applicable terms and conditions of each
such program (including, without limitation, the requirement to make
contributions toward such coverage).
6. Stock Options. Subject to the execution of this Agreement by Employee,
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and compliance by Employee with its terms, the committee responsible for
administering the 1991 Stock Option Plan (the "1991 Plan") and the 1981 Long
Term Incentive Plan (the "1981 Plan") has consented to Employee's retirement
from the Company as of the Retirement Date. As a result, any options held by
Employee pursuant to the terms of either the 1991 Plan or the 1981 Plan which
are exercisable as of the Retirement Date shall continue to remain exercisable
under the terms of each such Plan relating to retirees; provided that Employee
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agrees that, as part of the consideration for the Company entering into this
Agreement, the expiration date of each such option shall be reduced from ten
years from the date of its initial grant to the second anniversary of the
Retirement Date. Any options held by Employee pursuant to the terms of either
the 1991 Plan or the 1981 Plan which are not exercisable as of the Retirement
Date shall lapse as of such date and shall not become exercisable.
Notwithstanding the provisions of Section 5, Employee shall not be eligible for
any additional stock option grants to be made after the date hereof. Except as
otherwise expressly provided in this Section 6, all of the terms and conditions
of the 1991 Plan and 1981 Plan and the grants made thereunder to Employee
(including, without limitation, the expiration date of such options) shall
continue to be applicable to him.
7. Restricted Stock. Notwithstanding anything else contained herein to
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the contrary, Employee shall not be eligible for any additional restricted stock
grants to be made after the date hereof.
8. Termination by Company. Notwithstanding anything else contained
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herein to the contrary, if the Company terminates Employee's employment
hereunder at any time before the Retirement Date, other than due to Employee's
conviction of a felony or willful misconduct or gross negligence, Employee shall
be entitled to receive the benefits and annual bonus amount which would have
been payable to Employee had he voluntarily terminated his
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employment on the Retirement Date, and an amount as salary continuation equal to
the salary which would have been paid to Employee from the date of such
termination to such Retirement Date. In no event shall Employee be or become
entitled to receive any other severance or termination benefits by reason of
such termination under any plan, policy or program of the Company or any of its
subsidiaries.
9. Non-competition. During the Employment Period and for one year after
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the Retirement Date, Employee shall not engage directly or indirectly in or
become employed by, serve as an agent or consultant to, become a partner,
principal or stockholder of any partnership, corporation or other entity (a
"Competitor") which is engaged in a business which is competitive in any
geographical area with any business that accounts for a material portion of the
revenues of the Company or any of its subsidiaries; provided that Employee's
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ownership of less than 1% of the issued and outstanding stock of any corporation
whose stock is traded on an established securities market shall not constitute
competition with the Company.
10. Non-cooperation. During the Employment Period and for two years after
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the Retirement Date, Employee will not become associated with (whether through
an investment of capital or otherwise), provide services to or otherwise
solicit, aid, assist or cooperate with any person, group or entity (an
"Acquiror") in any effort to effect a change of ownership in, or otherwise gain
control of, the Company, whether through a stock purchase, merger, asset
acquisition, proxy solicitation or any other means. Nothing in this Section 10
shall be construed to preclude Employee from owning less than 1% of the
outstanding Common Stock of the Company or an Acquiror, whether acquired
pursuant to the terms of any employee benefit plan or otherwise.
11. Non-solicitation. During the Employment Period and for two years
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after the Retirement Date, Employee will not solicit or otherwise induce any
employee of the Company or its subsidiaries to leave the employ of the Company
or such subsidiaries or to become associated, whether as an employee, officer,
partner, director, consultant or otherwise, with any business organization,
including, but not limited to, a Competitor or Acquiror.
12. Non-disclosure. Without the prior written consent of the Company,
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except to the extent required by an order of a court having competent
jurisdiction or under subpoena from an appropriate government agency, Employee
shall not disclose any trade secrets, customer lists, drawings,
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designs, product development and related information, marketing plans and
related information, sales plans and related information, manufacturing plans
and related information, management organization and related information
(including data and other information related to members of the Board and
management), operating policies and manuals, business plans and related
information, financial records and related information, packaging design and
related information or other financial, commercial, business or technical
information related to the Company or any of its subsidiaries to any third
person unless such information has been previously disclosed to the public by
the Company or has become public knowledge other than by a breach of this
Agreement.
13. Intention of the Parties. If any provision of Sections 9, 10, 11 or
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12 is determined by a court of competent jurisdiction not to be enforceable in
the manner set forth in this Agreement, the Company and Employee agree that it
is the intention of the parties that such provision should be enforceable to the
maximum extent possible under applicable law and that such court shall reform
such provision to make it enforceable in accordance with the intent of the
parties.
14. Release. In consideration of the benefits provided to Employee
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hereunder, Employee hereby releases and absolves the Company from any and all
claims that Employee may now have or may hereafter have against the Company or
any of its subsidiaries arising out of or in connection with Employee's
employment with, or service as an officer or a director of, the Company or any
of its subsidiaries, other than any claim for the benefits to be provided to
Employee under this Agreement.
15. Indemnity. The Company or one of its subsidiaries, as appropriate,
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shall indemnify Employee for any claim arising out of or in connection with
Employee's service as an officer of the Company or as an officer or director of
any of the Company's subsidiaries in the same manner and to the same extent as
the Company or such subsidiary, as the case may be, indemnifies its then current
directors, officers or employees, as the case may be.
16. Remedies. Employee acknowledges that a material part of the
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inducement for the Company to enter into this Agreement is Employee's covenants
with respect to non-competition, non-disclosure, non-cooperation and non-
solicitation set forth in Sections 9 through 12 hereof. Employee agrees that if
Employee shall breach any of those covenants, the Company shall have no
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further obligation to pay Employee any benefits otherwise payable hereunder
(except as may otherwise be required at law) and shall be entitled to such other
legal and equitable relief as a court or arbitrator shall reasonably determine
unless such breach is an inadvertent breach that does not result in any
significant harm to the Company. Employee further agrees and acknowledges that a
remedy at law for any breach or threatened breach of the provisions of Sections
9, 10, 11 or 12 hereof would be inadequate and therefore agrees that the Company
shall be entitled to injunctive relief in addition to any other available rights
and remedies in case of any such breach or threatened breach; provided, however,
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that nothing contained in this sentence shall be construed as prohibiting the
Company from pursuing any other remedies available for any such breach or
threatened breach.
17. Withholding. All cash payments to be made under this Agreement shall
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be made net of all applicable income and employment taxes required to be
withheld from such payments. To the extent any compensation is payable to
Employee in accordance with this Agreement other than as a payment in cash,
Employee shall be required to pay the Company an amount equal to all applicable
income and employment taxes required to be withheld with respect thereto.
18. Miscellaneous. This Agreement may be amended only by a written
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instrument signed by the Company and Employee. Except with respect to any other
agreement between the Company and Employee that is specifically referenced
herein and intended to continue beyond the execution of this Agreement, this
Agreement shall constitute the entire agreement between the Company and Employee
with respect to the subject matter hereof. The obligations of the Company to
Employee and the covenants of Employee in favor of the Company shall survive the
termination of the Employment Period. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs (in the case of Employee) and assigns. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Any notices to be given
and any payments to be made hereunder shall be delivered in hand or sent by
registered mail, return receipt requested, to the respective party at the
address noted above for such party or to such other address as either such party
shall direct in accordance with this Section 18.
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19. Governing Law. This Agreement shall be governed by the laws of the
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State of New York, without reference to the principles of conflict of laws.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day first written above.
TAMBRANDS INC.
By:/s/ Xxxxxx X. Xxxxxxx
__________________________
Title: Chief Executive Officer
Witness:
/s/ Xxxxxx Xxxxx
__________________
/s/ Xxxxxxx X. Xxxxxx
______________________________
Xxxxxxx X. Xxxxxx
Witness:
/s/ Xxxxxx Xxxxx
__________________
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