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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
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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.
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(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
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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
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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.
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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
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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
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(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.
* * *
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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/ Richard W. Heath
--------------------------------------------------
Name: Richard W. Heath
TUPPERWARE CORPORATION
a Delaware corporation
By: /s/ Rick Goings
--------------------------------------------------
Name: Rick Goings
Title: Chairman and Chief Executive Officer
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EXHIBIT A
<TABLE>
<CAPTION>
STOCKHOLDER NUMBER OF SHARES
<S> <C>
Richard W. Heath 1,153,887
</TABLE>
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EXHIBIT B
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
__________, 2000 between BeautiControl, Inc., a Delaware corporation (the
"Company"), and Richard W. Heath (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve as
President and Chief Executive Officer 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 President
and Chief Executive Officer. 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 Tupperware, 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. The Company agrees that the Executive may
continue to serve as a director of Haggar Clothing Co., as a commissioner of the
Texas Parks and Wildlife Department, and as Chairman or Vice Chairman of The
Episcopal School of Dallas.
(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 strategic
direction and international expansion of the Company and the general
administration of the Company's affairs. The Executive shall also perform such
other duties (not inconsistent with the position of President and Chief
Executive Officer) on behalf of the Company and its subsidiaries as may from
time to time be authorized or directed.
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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 golf club membership dues for the club
membership in effect on the date of this Agreement; (ii) the Executive's
reasonable expenses for financial planning advice; and (iii) an automobile
consistent with the Company's current policy; provided, however, any and all
such payments and/or reimbursements shall be made under the same terms and in
the same amounts as the Executive was receiving from the Company immediately
prior to entering into this Agreement.
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(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 Tupperware. 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 under this provision. Such termination for Cause shall be authorized
by the Chief Executive Officer of Tupperware.
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(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 Tupperware. 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
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(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 Tupperware), 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
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<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:
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<TABLE>
<CAPTION>
If to the Company, to: If to the Executive, to:
---------------------- ------------------------
<S> <C>
BeautiControl, Inc. Richard W. Heath
c/o Tupperware Corporation 10041 Hollow Way
14901 S. Orange Blossom Trail Dallas, Texas 75229
Orlando, Florida 32837
Attention: Thomas M. Roehlk
</TABLE>
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.
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<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
BEAUTICONTROL, INC.
By:
------------------------------------
Title:
---------------------------------
RICHARD W. HEATH
---------------------------------------
