Exhibit 10.9
REGISTERED DIRECTOR'S AGREEMENT
between
ROV German Holding GmbH,
Xxxxxxxxxxxxxx 0X-00000, Xxxxxxxxx, Xxxxxxx
represented by its shareholder(s), ROV Holding, Inc.
- hereinafter referred to as the "Company" -
and
Xx. Xxxx Xxxxx,
Xxxxxxxxxxxx. 00, Xxxxxxxxx, Xxxxxxx 73479
000 xxxx xx Xxxxxx, 00000 X'Xxxx Xxxx, Xxxxxx
- hereinafter referred to as the "Registered Director" -
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Section 1 APPOINTMENT AND POWER OF REPRESENTATION
1.1 The Registered Director was appointed registered director of the Company
by resolution of the shareholder(s) meeting on 06 November 2002.
Continuous service with the Company is recognised as of 21 May 1990.
This Agreement contains the conditions of the employment relationship.
1.2 The Registered Director shall represent the Company in court and out of
court jointly with another registered director or a PROKURIST of the
Company. He shall be freed from the restrictions under Section 181
German Civil Code (BGB).
1.3 The Company reserves the right to appoint other registered directors and
establish different rules of representation at any time.
Section 2 DUTIES AND RESPONSIBILITIES
2.1 The Registered Director shall be responsible for the entire scope of
business of the Company. He shall, in addition, take the position as
Executive Vice President - Europe and be responsible for those functions
and duties assigned to him from time to time by the shareholder(s). The
shareholder(s) may decide on a different allocation of functions and
duties at any time; provided, however, that the Registered Director is
given at least three (3) months prior written notice thereof, to the
extent practicable. The place of performance is currently Ellwangen,
Germany, but on the Company's request the Registered Director is
required to relocate to Frankfurt, Germany. In addition, upon the
Company's request the Registered Director shall relocate to any other
office in Germany upon no less than three (3) months prior written
notice; provided, however, that the Company has determined in good faith
that such relocation is reasonably necessary for the Registered Director
to adequately perform his duties hereunder. The Registered Director is
obligated to secure a residence near the place of performance.
The Registered Director shall conduct the business of the Company with
the due care and diligence of a prudent businessman and in accordance
with the provisions of all applicable laws and regulations, in
particular the Law on Limited Liability Companies (GMBH-GESETZ), the
Articles of Association of the Company (SATZUNG) and the internal rules
of the board of directors (GESCHAFTSORDNUNG), if any, as amended from
time to time, as well as the directions given by the shareholder(s). The
Registered Director shall at all times comply with the instructions of
the shareholder(s).
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2.2 The Registered Director shall assume the rights and obligations the
Company has as employer with respect to labour and social security law.
2.3 Within 3 months following the end of each business year, the Registered
Director shall draw up the balance sheet and the profit and loss
statement for the completed business year and shall provide these to
each shareholder(s) together with a business report to be prepared by
him.
Section 3 TRANSACTIONS REQUIRING PRIOR CONSENT OF SHAREHOLDER(S)
3.1 The Registered Director is entitled to carry out all measures falling
within the normal scope of business of the Company.
3.2 The prior consent of the shareholder(s) shall be obtained before any
legal transactions are engaged which go beyond the normal scope of
business of the Company. To the extent that the consent of the
shareholder(s) is required under this Agreement, but not required under
applicable law, the shareholder(s) appoint the President and Chief
Operating Officer of Rayovac Corporation ("Rayovac"), Wisconsin
corporation and a company of which the Company is an indirect
subsidiary, (or any other officer of Rayovac as determined by the
shareholder(s) from time to time) as their duly authorized
representative (the "Representative"), who shall be authorized and
directed to act on their behalf in such instances.
This shall apply in particular to the acts and transactions as listed in
the articles of association as applicable respectively amended by the
shareholder(s) from time to time.
Section 4 WORKING HOURS AND SIDE ACTIVITIES
4.1 The Registered Director shall place his entire working capacity as well
as all his knowledge and abilities at the disposal of the Company.
4.2 The assumption of significant activities outside the private area,
whether paid or unpaid, requires the prior written consent of the
shareholder(s), which consent shall not be unreasonably withheld. The
same applies for the assumption of other duties and responsibilities not
specifically mentioned in this Agreement if they may in any way
significantly affect the interests of the Company (e.g. publications,
speeches, etc.). The shareholder(s)'s consent may
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be revoked at any time; in this event, any periods of notice required
when giving up such functions shall be taken into account.
4.3 At the request of the shareholder(s), the Registered Director will
accept other mandates where it serves the interests of the Company. Upon
the termination of this Agreement or his removal as a registered
director, he will resign from or terminate all such offices undertaken
and assumed at the request or in the interest of the Company. The
Registered Director hereby grants power of attorney to the
shareholder(s) of the Company to give notice of termination on his
behalf if he does not comply with the aforementioned obligation to
resign or terminate, this power of attorney not terminating by virtue of
any termination of this Agreement only.
Section 5 REMUNERATION
5.1 For his services, the Registered Director shall receive a fixed annual
gross salary of 325,000.00 EUR (in words: Three Hundred Twenty-Five
Thousand Euro) ("Fixed Salary") effective 1 October 2002, which shall
be paid in twelve equal monthly instalments at the end of each month
in arrears to a bank account indicated to the Company by the
Registered Director. The shareholder(s) of the Company will review
from time to time the Fixed Salary payable to the Registered Director
hereunder and may, in their discretion, increase the Registered
Director's Fixed Salary.
5.2 On or before December 31, 2002, the Company shall pay the Registered
Director a one-time bonus in a gross amount equal to 29,520 EUR (in
words: Twenty-Nine Thousand Five Hundred Twenty Euro), which amount
represents the bonus payable to the Registered Director for the period
beginning January 1, 2002 and ending September 30, 2002. The Registered
Director shall receive a bonus for each fiscal year, payable annually in
arrears, which shall be of up to sixty percent (60 %) of the Fixed
Salary, provided Rayovac achieves certain annual performance goals or
any other goals established by the Board of Directors (the "Board") of
Rayovac in its discretion from time to time (the "Bonus"). The Bonus
shall be paid (if payable) on or before December 31 of each year. The
annual performance goals approved by the Board shall be set forth in
writing and a copy shall be delivered to the Registered Director
promptly after approval thereof by the Board. Such annual performance
goals shall be subject to modification from time to time as approved by
the Board.
5.3 The Company will pay to the Registered Director the employer's social
security contributions as required under applicable laws, in particular
the contributions to the pension insurance, the unemployment insurance,
the health insurance and the nursing care insurance. If the Registered
Director is insured in a private health insurance, the Company will,
upon
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submission of adequate proof, pay 50 % of the contributions to such
health insurance but not more than the amount which would have to be
paid if the Registered Director was covered by the AOK statutory health
insurance.
5.4 With the above remuneration, any and all services of the Registered
Director for the Company or on behalf of the Company or any affiliated
company are compensated. There shall be no additional pay for overtime
and extra work.
5.5 All work results produced or achieved by the Registered Director belong,
and where applicable, all rights therein are transferred, to the
Company, without the Registered Director being entitled to any
additional remuneration therefore.
5.6 The assignment and pledging of claims for remuneration is subject to the
prior approval of the shareholder(s) of the Company.
Section 6 OTHER BENEFITS
6.1 During the term of this Agreement, the Company shall provide the
Registered Director with a company car in the "A" leasing group or car
category for business and private use.
Terms and conditions are subject to the Company's car rules as amended
from time to time.
The Registered Director herewith explicitly waives all claims and holds
the Company harmless from any claims, to which he, his family or third
parties could be entitled to in connection with the private use of the
car insofar as these are not covered by the Company's insurance
coverage.
6.2 The Pension Agreement concluded between VARTA Geratebatterie GmbH and
the Registered Director dated 22 May 1991 including the supplement of 1
July 1999 remains in force. The Company shall cause VARTA Geratebatterie
GmbH to assign such Pension Agreement to the Company, and the Company
shall assume the obligations of VARTA Geratebatterie GmbH thereunder, as
soon as reasonably practicable after the execution and delivery of this
Agreement by the parties hereto. The Registered Director expressly
agrees to such assignment, and will reasonably cooperate with the
Company to effectuate such assignment.
6.3 The accident insurance coverage will be upheld. In the event a new group
accident insurance policy is entered into by the Company, the Registered
Director will be entitled to participate
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under the then applicable new conditions; provided, however, that such
conditions shall be reasonably equivalent to or more favorable than
the previous conditions.
Any income taxes accruing on this benefit are to be borne by the
Registered Director.
6.4 The Registered Director shall be entitled to indemnification from the
Company to the maximum extent provided by law, but not for any action,
suit, arbitration or other proceeding (or portion thereof) initiated by
the Registered Director, unless authorized or ratified by the
shareholder(s) and the Board. Such indemnification shall be covered by
the terms of the Company's or Rayovac's policy of insurance for
directors and officers in effect form time to time (the "D&O
Insurance"). Copies of the D&O Insurance policy will be made available
to the Registered Director upon request.
6.5 The Company shall pay the Registered Director's actual and reasonable
legal fees incurred in connection with the preparation of this
Agreement.
6.6 All expense reimbursements and perquisites of the Registered Director
are reviewable periodically by the shareholder(s) and the Board or a
committee thereof.
Section 7 CHARGES AND EXPENDITURES
Travel costs and other appropriate expenditures, provided these are
incurred in the interest of the Company, will be pursuant to the general
provisions of the Company and the guidelines for management members of
the Company, if any and as amended from time to time. The Registered
Director accounts for his expenditures according to Group V
(VERTRAUENSSPESEN).
Section 8 INABILITY TO WORK
8.1 In the case of an inability to work, the Registered Director will
immediately inform the Company about this impairment and the expected
duration thereof as well as the reasons for such impairment. At the
request of the Company he shall provide a medical certificate.
8.2 Upon the Registered Director's inability to perform his duties hereunder
by reason of any mental, physical or other disability for a period of at
least six (6) consecutive months (for purposes hereof, "Disability" has
the same meaning as in the Company's or Rayovac's disability policy, if
applicable) (a "Disability"), all benefits paid to the Registered
Director by
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a statutory or private health insurance as compensation for the loss of
salary shall be deducted from any amounts paid to the Registered
Director under clause 14.7 hereof. Where the Registered Director is not
entitled to such benefits because he did not take out the appropriate
private health insurance, the equivalent of the sick pay payable under
statutory health insurance will be taken into account.
Section 9 HOLIDAY ENTITLEMENT
9.1 The Registered Director shall be entitled to 30 working days holiday per
year, it being understood that, for the sole purpose of holidays, the
working week will be deemed to run from Monday to Friday. The timing of
any holiday must be agreed to by the Representative and shall take into
account the business interests of the Company.
9.2 The holiday leave has to be granted and taken during the running
calendar year. If the Registered Director is not able to take his
holiday due to business needs he can transfer his remaining holiday to
the following calendar year. In case of such transfer the Registered
Director is required to take the holiday within the first six (6) months
of the following calendar year, otherwise the holiday claim expires.
Section 10 DUTY OF CONFIDENTIALITY
10.1 The Registered Director shall maintain strict confidentiality vis-a-vis
third parties as well as unauthorized staff members of the Company with
respect to all confidential or business matters concerning the Company
or any affiliated company and coming to his attention within the scope
of his activities for the Company, irrespective of how he obtained such
knowledge, except for such disclosures which follow from his duties as a
registered director of the Company and are essential for the due
performance of his functions. This obligation shall continue to apply
following termination of this Agreement.
The term "confidential or business matters of the Company" includes all
business, operational, organizational and technical knowledge and
information (e.g., existing and potential customer information, existing
and potential supplier information, product information, design and
construction information, pricing and profitability information,
financial information, sales and marketing strategies and techniques and
business ideas or practices) which shall not become known to the public
in accordance with the wishes or the
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best interest of the Company or any affiliated company or in
consideration of the nature of the information.
10.2 Business records of any kind, including private notes concerning the
Company's or any affiliated company's affairs and activities, may be
used for business purposes only. Business and operating records of any
kind or in any form which are in the possession of the Registered
Director as well as any copies thereof shall be carefully kept.
Section 11 NON-COMPETE-OBLIGATION
11.1 The Registered Director undertakes for the duration of the Agreement and
for a period of 1 year after its termination (the "Non-Compete Period")
not to become active for any domestic or foreign enterprise and/or
person operating in the field of the design, manufacturing, marketing or
sale of batteries or battery operated lighting devices competing or
potentially competing with the Company or any of its subsidiaries or
affiliates in the above named business.
11.2 The Registered Director in particular undertakes for the duration of the
Non-Compete Period not to become active as an employee, self-employed
person or consultant and not to hold any interest or acquire any
participation in a company which is directly or indirectly a competitor
of the Company or its affiliates and also not to conduct businesses on
his own or anyone else's behalf in such fields or finance or acquire any
such company except if such participation concerns shares or securities
quoted on or dealt in on any recognized stock exchange, held or
purchased for capital investment purposes only, provided that such an
investment shall not exceed 5 % of the equity share capital of the
relevant company and that the Registered Director has not concluded any
agreement granting him any additional rights or he is otherwise enabled
to substantially influence matters of such company, whether directly or
indirectly.
Competition for the purposes hereof is determined by the business of the
Company or any affiliated company at any time in the case of a
termination of the employment relationship by the business at the time
of the termination and in the two years prior to it, in so far as the
Registered Director had access to or was responsible for the interests
of the Company in such business.
11.3 As compensation for the restrictions imposed by the post-contractual
non-compete-obligation, the Company will pay to the Registered Director
compensation in the amount of 50 % of the remuneration as last received
by him for the duration of the post-contractual non-compete-obligation,
payable in monthly instalments in arrears; provided, however, that if
the Registered Director's employment by the Company is terminated by the
Company without
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Cause or by reason of Disability, the resulting payments by the Company
to the Registered Director required under clause 14.7 shall be in lieu
of any payment obligations on the part of the Company under this clause
11.3. Section 74 c of the German Commercial Code (Handelsgesetzbuch,
HGB) applies.
During the restriction period, the Registered Director is obliged to
submit to the Company at the end of each calendar quarter a statement
and proof regarding the amount of his income (after deduction of
deductible expenses) as a self-employed person or of his income as an
employee. As long as the Registered Director does not fulfil this
obligation, the claim for compensation does not accrue.
11.4 The Company may at any time waive its rights under clause 11.1 observing
a three (3) months' notice period. In such case, the Company is freed
from its obligation to pay compensation pursuant to clause 11.2 with the
end of the notice period after the waiver.
11.5 Unless otherwise provided herein, for the duration of the Non-Compete
Period Section 61 of the German Commercial Code shall be mutually
applicable.
Section 12 NON-SOLICITATION COVENANT
12.1 The Registered Director shall after the end of the Agreement be
forbidden to entice away the customers of the Company or any of its
affiliates. Customers of the Company or any of its affiliates are
persons or entities the Company or any of its affiliates has dealt with
or serviced or attempted to conclude business with within the past two
(2) years preceding the termination of the Registered Director's
employment hereunder. The pool of prohibited customers is limited to
those with whom the Registered Director dealt personally.
12.2 The Registered Director also undertakes for the duration of the
Non-Compete Period not to employ any employees of the Company or any of
its affiliates and not to entice away any employees, either for himself
or for third parties, and not to take part in any attempts of third
parties to entice them away.
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Section 13 CONTRACTUAL PENALTY
The Registered Director acknowledges that the Company or any of its
affiliates may suffer irreparable loss or damage as a result of any
breach of the obligations under this Agreement, in particular, Section
10, Section 11 and Section 12. In the case of any breach, the
Registered Director shall pay a contractual penalty (VERTRAGSSTRAFE)
of one (1) month of gross Fixed Salary monthly payments (on demand and
without any court order) in respect of each breach of this obligation.
The plea for continuation of offence (FORTSETZUNGSZUSAMMENHANG) shall
be excluded. In the case of a continuing breach which is not remedied,
there shall be deemed to be a separate breach each calendar month in
respect of which a separate penalty shall be payable. The contractual
penalty does not prejudice the Company's right to claim any further
damages in respect of losses suffered or to exercise any other right
or remedy available to it. If a court determines that any of the
restrictions contained in clauses 10, 11 or 12 are too broad or
otherwise unreasonable under applicable law, including with respect to
time or space, the court is hereby requested and authorized by the
parties hereto to revise such restrictions to include the maximum
restrictions allowed under applicable law.
Section 14 DURATION AND TERMINATION OF THE AGREEMENT
14.1 This Agreement shall enter into effect retrospectively on October 1,
2002 and shall continue until notice of termination thereof is delivered
in accordance with this article 14 (the "Term").
14.2 During the Term either party may terminate the employment relationship
by giving six (6) months notice to the end of a month.
14.3 The Company shall have the right at any time to terminate the Registered
Director's employment hereunder upon three (3) months prior written
notice to the end of a month upon the Registered Director's inability to
perform his duties hereunder by reason of any Disability. The Registered
Director's employment will be deemed automatically terminated upon his
death.
14.4 Notice of termination shall be given in writing. If this Agreement is
terminated by the Registered Director, notice thereof shall be given to
any other registered director or, in the event that no other registered
director has been appointed, to the shareholder(s) with the largest
holding in the Company.
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14.5 The right to terminate this Agreement for Cause shall remain unaffected.
The Company shall have the right at any time to terminate the Registered
Director's employment hereunder without prior notice upon the occurrence
of any of the following (any such termination being referred to as a
termination for "Cause"):
(i) the commission by the Registered Director of any deliberate and
premeditated act taken by the Registered Director in bad faith against
the interests of the Company or any of its affiliates;
(ii) the Registered Director has been convicted of, or pleads NOLO CONTENDERE
with respect to, any felony, or of any lesser crime or offense having as
its predicate element fraud, dishonesty or misappropriation of the
property of the Company;
(iii) the habitual drug addiction or intoxication of the Registered Director
which negatively impacts his job performance or the Registered
Director's failure of a Company-required drug test;
(iv) the wilful failure or refusal of the Registered Director to perform his
duties as set forth herein or the wilful failure or refusal to follow
the direction of the shareholder(s) of the Company, provided such
failure or refusal continues after thirty (30) days of the receipt of
notice in writing from shareholder(s) of the Company of such failure or
refusal, which notice indicates the Company's intention to terminate the
Registered Director's employment hereunder if such failure or refusal is
not remedied within such thirty (30) day period; or
(v) the Registered Director breaches any of the material terms of this
Agreement or any other agreement between the Registered Director and the
Company which breach is not cured within thirty (30) days subsequent to
notice from the Company to the Registered Director of such breach, which
notice indicates the Company's intention to terminate the Registered
Director's employment hereunder if such breach is not cured within such
thirty (30) day period.
14.6 If either party gives notice to terminate this Agreement, the Company
shall be entitled to release the Registered Director from his duties
during the period of notice, whereby any leave to which the Registered
Director may be entitled shall be deemed included in the period during
which he is released of such duties. During the period of release the
Company will continue to pay the Registered Director the Fixed Salary
and the social security contributions according to clause 5.3. In
addition, the Registered Director shall be entitled to use the Company
car for private purposes during such period of release. If the
Registered Director returns the Company car prior to the end of such
period, then he is entitled to claim financial compensation for the loss
of the cash benefit of the private use of the Company car until the end
of such period.
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14.7 If the Registered Director's employment is terminated by the Company
without Cause or by reason of death or Disability (but not upon
termination by the Company with Cause as permitted under clause 14.5 or
termination by the Registered Director for any reason), then the Company
shall pay the Registered Director the amounts and provide the Registered
Director, or his heirs, beneficiaries or personal representatives, as
applicable, the benefits as follows:
(i) The Company shall pay to the Registered Director as severance, a gross
amount in cash equal to triple the sum of (i) the Registered Director's
Fixed Salary, and (ii) the annual Bonus (if any) earned by the
Registered Director pursuant to any annual bonus or incentive plan
maintained by the Company in respect of the fiscal year ending
immediately prior to the fiscal year in which the termination occurs,
such cash amount to be paid to the Registered Director in equal monthly
instalments over the Non-Compete Period.
(ii) For the 24-month period immediately following such termination, the
Company shall arrange to provide the Registered Director and his
dependents the additional benefits contained in clause 5.3. Benefits
otherwise receivable by the Registered Director pursuant to this clause
14.7(ii) shall cease immediately upon the discovery by the Company of
the Registered Director's breach of any of the covenants contained in
clauses 10 or 11.
(iii) The Registered Director's accrued vacation at the time of termination
shall be paid as soon as reasonably practicable.
(iv) The provisions contained in this clause 14.7 shall be in lieu or any
payment obligation accruing to the Company under clause 11 hereof, it
being understood that the severance payments contained in this clause
14.7 are also as compensation for the restrictions imposed by the
post-contractual non-competition obligation.
Section 15 RETURN OF COMPANY PROPERTY
Business and operating records of any kind or in any form which are in
the possession of the Registered Director as well as any copies thereof
shall be returned to the Company at any time upon request of the Company
or the shareholder(s), at the latest upon termination of employment or
in the event of release from his duties at the date of such release.
This obligation to return Company property extends to any other item in
the direct or indirect possession of the Registered Director, including
the company car with all accessories, subject to the provisions set
forth in clause 14.6.
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The assertion of any counter rights or a right of retention by the
Registered Director is excluded. At the request of the Company, the
Registered Director shall declare in a written statement that all such
items have been returned to the Company.
Section 16 FINAL PROVISIONS
16.1 This Agreement contains the complete agreement of the parties on all
terms and conditions of the employment relationship. It replaces all
previous agreements or contractual entitlements, in particular the
service agreement with VARTA Geratebatterie GmbH dated 1 July 1999
including its supplements. No collateral agreements exist.
16.2 In order to be legally valid, any amendments or additions to this
Agreement, inclusive of this provision, must be made in writing and
require approval of the shareholder(s).
16.3 All notices and other communication given under this Agreement must be
in writing. This written form is also observed by the sending of a
telegram, telex or telecopy if the author of the document is indicated.
16.4 Should any provision of this Agreement be or become legally invalid,
this shall not affect the validity of the remaining provisions. In such
an event, the parties shall be obliged to replace the invalid provision
with a legally permissible provision which is compatible with the other
provisions hereof and which comes as close as possible to the economic
intentions of the parties.
16.5 The parties confirm herewith having received a complete copy of this
Agreement including enclosures.
16.6 This Agreement and all legal disputes arising hereunder or in connection
therewith are subject to the laws of the Federal Republic of Germany.
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16.7 In the event that any action is brought to enforce any of the provisions
of this Agreement or to obtain money damages for the breach thereof, and
such action results in the award of a judgment for money damages or in
the granting of any injunction in favor of one of the parties to this
Agreement, all expenses, including reasonable attorneys' fees, shall be
paid by the non-prevailing party.
Dated: Dated:
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/s/ Xxxx X. Xxxxxx /s/ Xxxx Xxxxx
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Company Xx. Xxxx Xxxxx
