<PAGE> 1
EXECUTION COPY
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of September 13, 2000 (this "Agreement"),
by the undersigned stockholder (the "Stockholder"), of BeautiControl, Inc., a
Delaware corporation (the "Company"), and Tupperware Corporation, a Delaware
corporation ("Parent").
RECITALS
A. Parent, B-C Merger Corporation, a Delaware corporation and a direct
wholly owned subsidiary of Parent ("Sub"), and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), whereby, upon the terms and subject to the conditions set forth in
the Merger Agreement, Sub shall, and Parent shall cause Sub to, make a cash
tender offer (the "Offer") for all outstanding shares of Common Stock, par value
$0.10 per share, of the Company ("Company Common Stock") at the Offer Price (as
defined in the Merger Agreement), the completion of such tender offer to be
followed by a merger of Sub with and into the Company;
B. As of the date hereof, the Stockholder owns the number of shares of
Company Common Stock appearing opposite his or her name on Exhibit A (such
shares of Company Common Stock, together with any other shares of capital stock
of the Company acquired by such Stockholder, individually, after the date hereof
during the term of this Agreement, whether upon the exercise of options or by
means of purchase, dividend, distribution or otherwise, being collectively
referred to herein as the "Subject Shares");
C. Promptly following the consummation of the Merger contemplated by the
Merger Agreement, the Stockholder and the Company will enter into an Employment
Agreement, in the form of the Attached Exhibit B (the "Employment Agreement");
and
D. As a condition to its willingness to enter into the Merger Agreement,
Parent has required that the Stockholder agree, and in order to induce Parent to
enter into the Merger Agreement the Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms used in this Agreement that are
not defined herein shall have such meanings as set forth in the Merger
Agreement.
2. Covenants of Stockholder. The Stockholder agrees as follows:
(a) Promptly after the commencement, within the meaning of Section
14d-2 of the Exchange Act, of the Offer, and in any event not later than
five business days prior to the first scheduled expiration date of the
Offer, the Stockholder shall tender, or cause to be tendered, the Subject
Shares pursuant to the Offer by delivering, or causing to be delivered, to
the depository for the Offer a duly executed letter of transmittal together
<PAGE> 2
with any other documents that may be reasonably requested by Parent or such
depositary. The Stockholder further agrees that he or she shall not
withdraw such tender of the Subject Shares.
(b) In any circumstances where a vote, consent or other approval with
respect to the Merger and the Merger Agreement is sought, the Stockholder
shall vote (or cause to be voted) the Subject Shares in favor of the
Merger, the adoption of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger
Agreement.
(c) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances where the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or
cause to be voted) the Subject Shares against any (i) merger agreement or
merger (other than the Merger Agreement and the Merger), Takeover Proposal,
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the
Company or any Subsidiary or (ii) amendment of the Company's Restated
Certificate of Incorporation or By-laws or other proposal or transaction
involving the Company or any of its Subsidiaries, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent or
nullify the Offer, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement or change in any manner
the voting rights of any class of capital stock of the Company. The
Stockholder further agrees that he or she shall not tender the Subject
Shares pursuant to any offer other than the Offer.
(d) The Stockholder agrees not to (i) sell, transfer, pledge, assign
or otherwise dispose of (including by gift) (collectively, "Transfer"), or
enter into any contract, option or other arrangement (including any
profit-sharing arrangement) with respect to the Transfer of the Subject
Shares to any person other than in connection with the Offer and the Merger
or (ii) enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, in relation to the Subject Shares.
(e) The Stockholder shall not, nor shall the Stockholder authorize
any investment banker, attorney or other advisor or representative of the
Stockholder to, directly or indirectly (i) solicit, initiate or encourage
the submission of any Takeover Proposal or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any
information with respect to the Company or any Subsidiary in connection
with, or take any other action to facilitate any inquiries or the making of
any proposal that constitutes or may reasonably be expected to lead to, any
Takeover Proposal, except in his or her capacity as a representative or
agent of the Company, as permitted by the terms and conditions of the
Merger Agreement.
(f) The Stockholder shall use the Stockholder's best efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with Parent in doing, all things necessary, proper or
advisable to support and to consummate and make effective, in the most
expeditious manner practicable, the Offer, the Merger and the other
transactions contemplated by the Merger Agreement.
2
<PAGE> 3
(g) The Stockholder agrees to promptly notify Parent in writing of
the nature and amount of any acquisition by such Stockholder of any voting
securities of the Company acquired by such Stockholder hereinafter.
(h) The Stockholder hereby revokes any and all prior proxies or
powers of attorney in respect of any of Subject Shares.
(i) In the 90 days following the Closing, the Stockholder shall
purchase shares of common stock, par value $.01, of the Parent (the "Parent
Common Stock") having an aggregate Price of not less than $1.25 million
(the "Purchased Shares"). For purposes of this section, the "Price" of a
share of Parent Common Stock shall be the price paid by the Stockholder for
that share. During the two years following the date on which the
Stockholder completes his or her accumulation of all of the Purchased
Shares pursuant to this Section 2(i), the Stockholder shall not Transfer,
short against the box or in any way reduce his or her risk in (or enter
into any contract, option or other arrangement that accomplishes or has the
effect of accomplishing any of the foregoing) the Purchased Shares;
provided, however, that the restriction set forth in this sentence shall no
longer apply if: (a) the Parent terminates the Stockholder's employment
with the Parent or the Surviving Corporation, (b) E.V. (Rick) Goings ceases
to be Chief Executive Officer of the Parent, or (c) Parent undergoes a
Change in Control.
(j) The Stockholder shall not commit or agree to take any action
inconsistent with the covenants set forth in this Agreement.
3. Representations and Warranties. Each Stockholder represents and
warrants with respect to himself or herself to Parent as follows:
(a) The Stockholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Subject Shares. The
Stockholder has the sole right to vote, and the sole power of disposition
with respect to, the Subject Shares, and none of the Subject Shares is
subject to any voting trust, proxy or other agreement, arrangement or
restriction with respect to the voting or disposition of such Subject
Shares.
(b) The Stockholder has all requisite power and authority to execute
and deliver this Agreement, to perform his or her obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Stockholder. Assuming the due
authorization, execution and delivery of this Agreement by Parent, this
Agreement constitutes the valid and binding agreement of the Stockholder
enforceable against the Stockholder in accordance with its terms. The
execution and delivery of this Agreement by the Stockholder does not and
will not conflict with any agreement, order or other instrument binding
upon the Stockholder, nor require any regulatory filing or approval, other
than pursuant to the HSR Act.
4. Representations and Warranties of Parent. Parent represents and
warrants to the Stockholder that Parent has all requisite corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions
3
<PAGE> 4
contemplated hereby and that the execution and delivery of this Agreement by
Parent and the consummation by it of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Parent and
this Agreement has been duly executed and delivered by Parent and constitutes a
valid and binding agreement of Parent.
5. Noncompetition; Nonsolicitation.
(a) The Stockholder acknowledges that in the course of the
Stockholder's employment with the Company the Stockholder has and will
become familiar with trade secrets and other confidential information
concerning the Company and its subsidiaries and that the Stockholder's
services will be of special, unique and extraordinary value to the Company
and its subsidiaries.
(b) The Stockholder agrees that during the period of the
Stockholder's employment with the Company and the period, if any, during
which the Stockholder is receiving severance payments from the Company
pursuant to Section 4 of the Stockholder's Employment Agreement (the
"Noncompetition Period"), the Stockholder shall not in any manner, directly
or indirectly, through any person, firm or corporation, alone or as a
member of a partnership or as an officer, director, stockholder, investor
or employee of or consultant to any other corporation or enterprise or
otherwise, engage or be engaged, or assist any other person, firm,
corporation or enterprise in engaging or being engaged, in any business, in
which the Stockholder was involved or had knowledge, being conducted by, or
contemplated by, the Company, any of its subsidiaries or any of the
worldwide direct selling companies of Parent as of the termination of the
Stockholder's employment in any geographic area in which the Company, any
of its subsidiaries or any of the worldwide direct selling companies of
Parent is then conducting such business.
(c) The Stockholder further agrees that during the Noncompetition
Period the Stockholder shall not (i) in any manner, directly or indirectly,
induce or attempt to induce any employee or independent sales force member
of the Company, any of its subsidiaries or any worldwide direct selling
company of Parent to terminate or abandon his or her employment or other
relationship with the Company or such Parent affiliate for any purpose
whatsoever or (ii) in connection with any business to which Section 5(b)
applies, call on, service, solicit or otherwise do business with any
customer of the Company, any of its subsidiaries or any of the worldwide
direct selling companies of Parent.
(d) Nothing in this Section 5 shall prohibit the Stockholder from
being (i) a stockholder in a mutual fund or a diversified investment
company or (ii) an owner of not more than two percent of the outstanding
stock of any class of a corporation, any securities of which are publicly
traded, so long as the Stockholder has no active participation in the
business of such corporation.
(e) If, at any time of enforcement of this Section 5, a court or an
arbitrator holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area
4
<PAGE> 5
reasonable under such circumstances shall be substituted for the stated
period, scope or area and that the court or arbitrator shall be allowed to
revise the restrictions contained herein to cover the maximum period, scope
and area permitted by law. This Agreement shall not authorize a court or
arbitrator to increase or broaden any of the restrictions in this Section
5.
(f) Parent and the Stockholder agree that the payment of proceeds for
the Subject Shares pursuant to the Offer represents in part value for the
covenants given by the Stockholder in this Section 5, as well as value
given for the other covenants made by the Stockholder in this Agreement.
6. Termination. With the exception of the obligations set forth in
Section 2(i) and Section 5 above, which obligations shall terminate pursuant to
the terms set forth in such sections, the obligations of the Stockholder
hereunder shall terminate upon the earlier to occur of (i) 6 months after the
termination of the Merger Agreement pursuant to Section 8.1 thereof and (ii) the
Effective Time, provided however, that upon the termination of the Merger
Agreement pursuant to Section 8.1 thereof, the obligations set forth in Sections
2(a) and 2(b) shall no longer apply. No termination of this Agreement shall
relieve any party hereto from any liability for any breach of this Agreement
prior to termination.
7. Further Assurances. The Stockholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
8. Successors, Assigns and Transferees Bound. Any successor, assignee or
transferee (including a successor, assignee or transferee as a result of the
death of the Stockholder, such as an executor or heir) shall be bound by the
terms hereof, and the Stockholder shall take any and all actions necessary to
obtain the written confirmation from such successor, assignee or transferee that
it is bound by the terms hereof.
9. Remedies. The Stockholder acknowledges that money damages would be
both incalculable and an insufficient remedy for any breach of this Agreement by
it, and that any such breach would cause Parent irreparable harm. Accordingly,
the Stockholder agrees that in the event of any breach or threatened breach of
this Agreement, Parent, in addition to any other remedies at law or in equity it
may have, shall be entitled, without the requirement of posting a bond or other
security, to equitable relief, including injunctive relief and specific
performance.
10. Severability. The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
11. Amendment. This Agreement may be amended only by means of a written
instrument executed and delivered by both the Stockholder and Parent.
5
<PAGE> 6
12. Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the U.S. District Court for the District of Delaware in any
action, suit or proceeding arising in connection with this Agreement, and agrees
that any such action, suit or proceeding shall be brought only in such courts
(and waives any objection based on forum non conveniens or any other objection
to venue therein). Each party hereto waives any right to a trial by jury in
connection with any such action, suit or proceeding.
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
14. Expenses. Each party hereto shall pay its own expenses incurred in
connection with this Agreement, except as specified in the Merger Agreement.
15. Notice. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended or if sent by
telex or telecopier (and also confirmed in writing) to the person at the address
set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
(a) if to Parent, to:
Tupperware Corporation
14901 S. Orange Blossom Trail
Orlando, FL 32827
Attention: Thomas M. Roehlk
Facsimile: 407-826-4514
with copies to:
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, Illinois 60603
Attention: Thomas A. Cole
Steven Sutherland
Facsimile: 312-853-7036
(b) if to the Stockholder to:
BeautiControl, Inc.
2121 Midway Road
Carrollton, TX 75006
Attention: Richard W. Heath
Facsimile: 972-341-3098
6
<PAGE> 7
with a copy to:
Haynes & Boone, LLP
1600 N. Collins, Suite 2000
Richardson, TX 75080
Attention: David H. Oden
Facsimile: 972-692-9029
16. Counterparts. For the convenience of the parties, 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.
17. No Limitation on Actions of the Stockholder as Director.
Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require the Stockholder to take
or in any way limit any action that the Stockholder may take to discharge the
Stockholder's fiduciary duties as a director of the Company, including but not
limited to the right to vote for or support a Superior Proposal in accordance
with the terms of the Merger Agreement.
18. Waiver of Appraisal Rights. The Stockholder hereby waives any rights
of appraisal or rights to dissent from the Merger.
19. Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Subject Shares.
20. Definition of Change in Control. For purposes of this Agreement,
Change in Control shall mean:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Parent (the
"Outstanding Parent Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Parent entitled to vote generally in the
election of directors (the "Outstanding Parent Voting Securities"); provided,
however, that for purposes of this subsection (a), the following acquisitions
shall not constitute a Change of Control: (i) any acquisition directly from the
Parent, provided, however that this subsection (i) will not apply to the
acquisition by any person or "group" (as defined in Section 13(d)(3) of the
Exchange Act) from Parent of more than 50% of the Outstanding Parent Common
Stock, (ii) any acquisition by the Parent, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Parent or any
corporation controlled by the Parent or (iv) any acquisition by any corporation
pursuant to a transaction that complies with clauses (i), (ii) and (iii) of
subsection (c) of this Section 20; or
7
<PAGE> 8
(b) Individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") of the Parent cease for any reason to
constitute at least a majority of the Board, provided that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Parent's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(c) Consummation by the Parent of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Parent or the acquisition of the assets of another corporation (a
"Corporate Transaction"), in each case, unless, following such Corporate
Transaction, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Parent Common Stock
and Outstanding Parent Voting Securities immediately prior to such Corporate
Transaction beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Parent or all or
substantially all of the Parent's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Corporate Transaction of the Outstanding Parent Common
Stock and Outstanding Parent Voting Securities, as the case may be, (ii) no
Person (excluding any employee benefit plan (or related trust) of the Parent or
such corporation resulting from such Corporate Transaction) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Corporate Transaction and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Corporate
Transaction were members of the Incumbent Board at the time of the execution of
the initial agreement, or at the time of the action of the Board, providing for
such Corporate Transaction; or
(d) Approval by the shareholders of the Parent of a complete liquidation
or dissolution of the Parent.
* * *
8
<PAGE> 9
IN WITNESS WHEREOF, the Stockholder and Parent have caused this Agreement
to be duly executed and delivered on the day first above written.
STOCKHOLDER
/s/ Jinger L. Heath
-----------------------------------------------
Name: Jinger L. Heath
TUPPERWARE CORPORATION
a Delaware corporation
By: /s/ Rick Goings
-------------------------------------------
Name: Rick Goings
Title: Chairman and Chief Executive Officer
9
<PAGE> 10
EXHIBIT A
<TABLE>
<CAPTION>
NUMBER OF
STOCKHOLDER SHARES
<S> <C>
Jinger L. Heath 1,153,887
</TABLE>
<PAGE> 11
EXHIBIT B
<PAGE> 12
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
__________, 2000 between BeautiControl, Inc., a Delaware corporation (the
"Company"), and Jinger L. Heath (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve as Chairman
of the Company, and the Executive desires to be employed by the Company, upon
the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the Company and the Executive hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive and the
Executive hereby agrees to be employed by the Company upon the terms and subject
to the conditions contained in this Agreement. The term of employment of the
Executive by the Company pursuant to this Agreement (the "Employment Period")
shall commence as of the Effective Time of the merger of B-C Merger Corporation
with and into the Company pursuant to the Agreement and Plan of Merger, dated as
of September 13, 2000, among Tupperware Corporation ("Tupperware"), B-C Merger
Corporation and the Company (the "Effective Date") and shall end on the fifth
annual anniversary of the Effective Date, unless earlier terminated pursuant to
Section 4 hereof.
2. POSITION AND DUTIES; RESPONSIBILITIES. (a) Position and Duties. The
Company shall employ the Executive during the Employment Period as its Chairman.
During the Employment Period, the Executive shall perform faithfully and loyally
and to the best of the Executive's abilities the duties assigned to the
Executive hereunder and shall devote the Executive's full business time,
attention and effort to the affairs of the Company and its subsidiaries and
shall use the Executive's reasonable best efforts to promote the interests of
the Company and its subsidiaries. The Executive may engage in charitable, civic
or community activities and, with the prior approval of the Chief Executive
Officer of the Company, may serve as a director of any other business
corporation, provided that such activities or service do not interfere with the
Executive's duties hereunder.
(b) Responsibilities. Subject to the powers, authority and responsibilities
vested in the Board of Directors of the Company (the "Board"), the Executive
shall have the authority and responsibility for the creative function of the
Company, including but not limited to (i) maintaining regular motivational
contact with senior leaders in the Company's independent sales force, (ii)
planning and selecting new products, colors and packaging, (iii) establishing
and maintaining print and television media appearances for the Company, (iv) in
coordination with the staff of Tupperware, managing ongoing public relations of
the Company, (v) serving as the image representative of the Company with
internal and external audiences of the Company, and (vi) serving as the
Chairperson of WHO Foundation, in coordination with the staff of Tupperware. The
Company recognizes that a substantial amount of the Executive's duties may be
performed outside the offices of the Company. The Executive shall also perform
such other
<PAGE> 13
duties (not inconsistent with the position of Chairman) on behalf of the Company
and its subsidiaries as may from time to time be authorized or directed.
3. COMPENSATION. (a) Base Salary. During the Employment Period, the Company
shall pay to the Executive a base salary at the rate of $300,000 per annum
("Base Salary"), payable in accordance with the Company's executive payroll
policy. Such Base Salary shall be reviewed annually, and shall be subject to
such annual increases, if any, as determined by the Compensation and Directors
Committee of the Board of Directors of Tupperware (the "Committee").
(b) Annual Bonus. During the Employment Period, the Company shall provide
the Executive the opportunity to earn an annual incentive bonus (with such
targets being set at reasonable levels) under Tupperware's annual bonus plan in
effect from time to time, with an annual target bonus of at least 45% of the
Executive's Base Salary; provided, however, in no event may the Executive
receive an annual bonus in excess of 90% of the Executive's Base Salary ("Annual
Bonus"). Nothing in this Section 3(b) shall be construed as limiting the
Committee's right to revise, amend or terminate Tupperware's annual bonus plan
in effect from time to time.
(c) Stock Option Grants. The Company shall recommend to the Committee that,
as soon as practicable following the Effective Date, the Executive be granted an
option to purchase 52,500 shares of Tupperware common stock ("Common Stock"), at
a price equal to the fair market value of a share of Common Stock on the date of
grant. The terms and conditions of such option shall be governed by the
Executive's individual stock option award agreement and the Tupperware
Corporation 2000 Incentive Plan. During each year of the Employment Period
commencing after 2000, the Company shall recommend to the Committee that the
Executive be granted an option to purchase at least 35,000 shares of Common
Stock. Any such annual stock option grants shall be subject to the terms and
conditions of the Tupperware 2000 Incentive Plan or such other plan in effect
from time to time and under which such options are granted to the Executive, as
well as to the Committee's discretion to grant annual stock option awards
generally, and which option grants shall be memorialized in Tupperware's
standard stock option agreement used for officers of Tupperware, a copy of which
is attached hereto as an exhibit.
(d) Other Benefits. During the Employment Period, the Executive shall be
entitled to participate in the Company's employee benefit plans generally
available to executives of the Company (including, but not limited to, medical,
dental, short-term disability, long-term disability, executive life insurance
and 401(k), such benefits being hereinafter referred to as the "Employee
Benefits"). The Executive shall be entitled to take time off for vacation or
illness in accordance with the Company's policy for executives (which shall be
at least six weeks per year for vacation) and to receive all other fringe
benefits as are from time to time made generally available to executives of the
Company.
(e) Perquisites. During the Employment Period, the Company shall pay or
reimburse the Executive for (i) monthly country club membership dues for the
club in effect on the date of this Agreement, and (ii) an automobile consistent
with the Company's current policy; provided, however, any and all such payments
and/or reimbursements shall be made under the
2
<PAGE> 14
same terms and in the same amounts as the Executive was receiving from the
Company immediately prior to entering into this Agreement.
(f) Expense Reimbursement. During the Employment Period, the Company shall
reimburse the Executive, in accordance with the Company's policies and
procedures, for all proper expenses incurred by the Executive in the performance
of the Executive's duties hereunder.
4. TERMINATION. (a) Death. Upon the death of the Executive, this Agreement
shall automatically terminate and all rights of the Executive and the
Executive's heirs, executors and administrators to compensation and other
benefits under this Agreement shall cease immediately, except that the
Executive's heirs, executors or administrators, as the case may be, shall be
entitled to:
(i) accrued Base Salary through and including the Executive's date of
death;
(ii) accrued Annual Bonus through and including the Executive's date
of death; and
(iii) other Employee Benefits to which the Executive was entitled on
the date of death in accordance with the terms of the plans and programs of
the Company.
(b) Disability. The Company may, at its option, terminate this Agreement
upon written notice to the Executive if the Executive, because of physical or
mental incapacity or disability, fails to perform the essential functions of the
Executive's position, with or without reasonable accommodation, required of the
Executive hereunder for a continuous period of 120 days or any 180 days within
any 12-month period. Upon such termination, all obligations of the Company
hereunder shall cease immediately, except that the Executive shall be entitled
to:
(i) accrued Base Salary through and including the effective date of
the Executive's termination of employment;
(ii) accrued Annual Bonus through and including the effective date of
the Executive's termination of employment; and
(iii) other Employee Benefits to which the Executive is entitled upon
termination of employment in accordance with the terms of the plans and
programs of the Company.
In the event of any dispute regarding the existence of the Executive's
incapacity or disability hereunder, the matter shall be resolved by the
determination of a physician mutually agreed to by the Executive and the Chief
Executive Officer of the Company. The Executive shall submit to appropriate
medical examinations for purposes of such determination.
(c) Cause. (i) The Company may terminate the Executive's employment
hereunder for Cause upon written notice to the Executive (the "Cause Notice").
The Cause Notice shall state with particularity the basis for the termination of
Executive
3
<PAGE> 15
under this provision. Such termination for Cause shall be authorized by the
Chief Executive Officer of Tupperware.
(ii) For the purposes of this Agreement, "Cause" means the occurrence
of any of the following events:
(A) any intentional act of fraud, embezzlement or theft in
connection with the Executive's employment, or the misappropriation of
Company property;
(B) the Executive's conviction of, or plea of nolo contendre to,
a felony;
(C) the Executive's willful disobedience of a lawful directive of
the Chief Executive Officer of Tupperware, which directive is
otherwise reasonable and consistent with the scope and nature of the
Executive's duties and responsibilities under this Agreement;
(D) gross negligence or willful misconduct in the performance of
Executive's duties or responsibilities under this Agreement which
results in a substantial loss to the Company or any of its
subsidiaries, taken as a whole; or
(E) a violation of a statutory or common law duty of loyalty to
the Company, which results in a material loss to the Company or any of
its subsidiaries, taken as a whole, or a violation which involves the
engagement in or performance of services for a competing business
which provides the same or substantially similar products as those
provided by the Company or Tupperware.
(iii) The events described in clauses (C), (D) and (E) above shall not
constitute Cause unless the Company gives the Executive a written notice of
such event, and the Executive thereafter fails to cure such event within 30
days after receipt of the notice.
(iv) The exercise of the right of the Company to terminate this
Agreement pursuant to this Section 4(c) shall not abrogate the rights or
remedies of the Company in respect of the breach giving rise to such
termination.
(v) If the Company terminates the Executive's employment for Cause,
all obligations of the Company hereunder shall cease, except that the
Executive shall be entitled to the payments and benefits specified in
Sections 4(b)(i) and 4(b)(iii) hereof.
(d) Termination Without Cause. The Company may, at its option, terminate
the Executive's employment under this Agreement upon written notice to the
Executive for a reason other than a reason set forth in Section 4(a), 4(b) or
4(c). Any such termination shall be authorized by the Chief Executive Officer of
the Company. If the Company terminates the Executive's employment for any such
reason, all obligations of the Company hereunder shall cease immediately, except
that the Executive shall be entitled to:
(i) the payments and benefits specified in Sections 4(b)(i) through
4(b)(iii) hereof, inclusive; and
4
<PAGE> 16
(ii) the continuation of payment of amounts equal to the Base Salary
which otherwise would have been payable hereunder had the Executive's
employment hereunder not been terminated pursuant to this Section 4(d) for
a period of two years.
(e) Voluntary Termination. Upon 60 days prior written notice to the Company
(or such shorter period as may be permitted by the Chief Executive Officer of
the Company), the Executive may voluntarily terminate the Executive's employment
with the Company for any reason. If the Executive voluntarily terminates the
Executive's employment pursuant to this Section 4(e), all obligations of the
Company hereunder shall cease immediately, except that the Executive shall be
entitled to the payments and benefits specified in Sections 4(b)(i) and
4(b)(iii) hereof.
5. Federal and State Withholding. The Company shall deduct from the amounts
payable to the Executive pursuant to this Agreement the amount of all required
federal, state and local withholding taxes in accordance with the Executive's
Form W-4 on file with the Company, and all applicable federal employment taxes.
6. CONFIDENTIALITY. The Executive shall not, at any time during the
Employment Period or thereafter, make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret information of
the Company or of any of its subsidiaries or (ii) other technical, business,
proprietary or financial information of the Company or of any of its
subsidiaries not available to the public generally or to the competitors of the
Company or to the competitors of any of its subsidiaries ("Confidential
Information"), except to the extent that such Confidential Information (a)
becomes publicly available, other than as a result of any act or omission of the
Executive, (b) is required to be disclosed by any law, regulation or order of
any court or regulatory commission, department or agency, provided that the
Executive gives prompt notice of such requirement to the Company to enable the
Company to seek an appropriate protective order, or (c) is required to be used
or disclosed by the Executive to perform properly the Executive's duties under
this Agreement. The Executive also shall abide by the terms of any and all
existing or future confidentiality agreements with the Company; provided,
however, in the event that there is a conflict between the provisions of this
Agreement and such other agreement or agreements, the provisions of this
Agreement shall govern. Promptly following the termination of the Employment
Period, the Executive shall surrender to the Company all records, memoranda,
notes, plans, reports, computer tapes and software and other documents and data
which constitute Confidential Information which the Executive may then possess
or have under the Executive's control (together with all copies thereof).
7. INVENTIONS. The Executive hereby assigns to the Company the Executive's
entire right, title and interest in and to all discoveries and improvements,
patentable or otherwise, trade secrets and ideas, writings, copyrightable
material, trademarks and servicemarks which may be conceived by the Executive or
developed or acquired by the Executive during the Employment Period, which may
pertain directly or indirectly to the business of the Company or any of its
subsidiaries. The Executive agrees to disclose fully all such developments to
the Company upon its request, which disclosure shall be made in writing promptly
following any such request. The Executive shall, upon the Company's request,
execute, acknowledge and deliver to the Company all instruments and do all other
acts which are necessary or desirable to enable the Company or any of its
subsidiaries to file and prosecute
5
<PAGE> 17
applications for, and to acquire, maintain and enforce, all patents, trademarks
and copyrights in all countries. The Executive also shall abide by the terms of
any and all existing or future intellectual property agreements with the
Company; provided, however, in the event that there is a conflict between the
provisions of this Agreement and such other agreement or agreements, the
provisions of this Agreement shall govern.
8. REPRESENTATIONS. The Executive represents and warrants to the Company
that (a) the execution, delivery and performance of this Agreement by the
Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which the Executive is bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other person or entity and (c)
upon the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of the Executive, enforceable in
accordance with its terms.
9. SURVIVAL. Sections 6 and 7 of this Agreement shall survive and continue
in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Employment Period.
10. ARBITRATION. Any dispute or controversy between the Company and the
Executive arising out of or relating to this Agreement shall be settled by
arbitration in Texas administered by the American Arbitration Association, with
any such dispute or controversy arising under this Agreement being so
administered in accordance with its Commercial Rules then in effect, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator shall have the authority to award
any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, the issuance of an injunction. However,
either party may, without inconsistency with this arbitration provision, apply
to any court having jurisdiction over such dispute or controversy and seek
interim provisional, injunctive or other equitable relief until the arbitration
award is rendered or the controversy is otherwise resolved. Except as necessary
in court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company and the Executive. The Company and the
Executive acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision included in
this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
11. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when (a) delivered
personally or by overnight courier to the following address of the other party
hereto (or such other address for such party as shall be specified by notice
given pursuant to this Section) or (b) sent by facsimile to the following
facsimile number of the other party hereto (or such other facsimile number for
such party as shall be specified by notice given pursuant to this Section), with
the confirmatory copy delivered by overnight courier to the address of such
party pursuant to this Section 11:
6
<PAGE> 18
If to the Company, to: If to the Executive, to:
BeautiControl, Inc. Jinger L. Heath
c/o Tupperware Corporation 10041 Hollow Way
14901 S. Orange Blossom Trail Dallas, Texas 75229
Orlando, Florida 32837
Attention: Thomas M. Roehlk
12. SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under applicable law or rule in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision of this Agreement or the
validity, legality or enforceability of such provision in any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
13. ENTIRE AGREEMENT. Except as otherwise provided in Sections 6 and 7
hereof, this Agreement constitutes the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related in any manner to the
subject matter hereof.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable by the
Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and assigns.
15. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Texas without
regard to principles of conflict of laws.
16. AMENDMENT AND WAIVER. The provisions of this Agreement may be amended
or waived only by the written agreement of the Company and the Executive, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
17. COUNTERPARTS. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
7
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BEAUTICONTROL, INC.
By:
--------------------------------
Title:
----------------------------
JINGER L. HEATH
-----------------------------------
