Exhibit 10.3
CHANGE OF CONTROL EMPLOYMENT
AGREEMENT
AGREEMENT by and between TUPPERWARE
BRANDS CORPORATION, a Delaware corporation (the
“Company”) and
(the “Executive”), dated as of the
day of
, 20
.
The Board of Directors of the
Company (the “Board”) has determined that it is in the
best interests of the Company and its shareholders to assure that
the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below) of the Company. The Board believes it
is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change of Control and to encourage the
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that
the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives,
the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED
AS FOLLOWS:
1. Certain Definitions
.
(a) The “Effective Date”
shall be the first date during the Protection Period (as defined in
Section 1(b)) on which a Change of Control occurs. Anything in
this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Executive’s employment with the
Company is terminated prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated
to effect the Change of Control or (ii) otherwise arose in
connection with or anticipation of the Change of Control, then for
all purposes of this Agreement the “Effective Date”
shall mean the date immediately prior to the date of such
termination of employment.
(b) The “Protection
Period” shall be the period commencing on the date hereof and
ending on the third anniversary of such date; provided, however,
that commencing on the date one year after the date hereof, and on
each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the
“Renewal Date”), the Protection Period shall be
automatically extended so as to terminate three years from such
Renewal Date, unless at least 60 days prior to the Renewal Date the
Company shall give notice to the Executive that the Protection
Period shall not be so extended.
2. Change of Control . For
the purpose of this Agreement, a “Change of 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 Company
(the “Outstanding Company Common Stock”) or
(ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company 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
Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(i), (ii) and (iii) of subsection (c) of this
Section 2; or
(b) Individuals who, as of the date
hereof, constitute the Board (the “Incumbent Board”)
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 Company’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 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 Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company, the acquisition of assets of another corporation, a
statutory share exchange or other similar transactions (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 Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly,
more than 50% 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 Company
or all or substantially all of the Company’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 Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(ii) no Person (excluding any employee benefit plan (or
related trust) of the Company 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 Company of a complete liquidation or dissolution of the
Company.
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3. Employment Period . The
Company hereby agrees to continue the Executive in its employ or
the employ of one of its subsidiaries, and the Executive hereby
agrees to remain in such employ of the Company subject to the terms
and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the third anniversary of such date
(the “Employment Period”).
4. Terms of Employment.
(a) Position and Duties
.
(i) During the Employment Period,
(A) the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned at any time during the 90-day period immediately preceding
the Effective Date and (B) the Executive’s services
shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or location
less than 35 miles from the Executive’s primary residence
immediately prior to any relocation.
Such position, authority, duties and
responsibilities shall be regarded as not commensurate and as
inconsistent and result in a diminution for purposes of
Section 5(c)(i) if, as a result of a Change of Control, (I),
the Company becomes a direct or indirect subsidiary of another
corporation or becomes controlled, directly or indirectly, by an
unincorporated entity (such ultimate parent corporation or
unincorporated entity is hereinafter referred to as a “parent
company”), or (II) all or substantially all of the assets of
the Company are acquired by another corporation or corporations or
unincorporated entity or entities owned or controlled, directly or
indirectly, by another corporation or unincorporated entity (such
ultimate parent corporation or unincorporated entity is also
hereinafter referred to as a “parent company”), unless,
in each of (I) and (II), (x) Section 12 (c) of
this Agreement shall have been complied with by any such parent
company and (y) the Executive shall have assumed a position
with such parent company and the Executive’s position,
authority, duties and responsibilities with such parent company are
at least commensurate in all material respects with the most
significant of those held, exercised and assigned with the Company
at any time during the 90-day period immediately preceding the
Effective Date, or (III) the Company becomes owned or controlled,
directly or indirectly, by more than one other corporation and/or
unincorporated entity, as the case may be, which are not owned or
controlled, directly or indirectly, by a single parent company or
(IV) more than one unrelated corporation or unincorporated entity
acquires a significant portion of the assets of the Corporation and
such unrelated corporations or unincorporated entities, as the case
may be, are not owned or controlled, directly or indirectly, by a
single parent company.
(ii) During the Employment Period,
and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use
the Executive’s reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment Period
it shall not be a violation of this Agreement for the Executive to
(A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements
or teach at educational institutions and (C) manage
personal
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investments, so long as such activities do not
significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the
performance of the Executive’s responsibilities to the
Company.
(b) Compensation .
(i) Base Salary . During the
Employment Period, the Executive shall receive an annual base
salary (“Annual Base Salary”), which shall be paid at a
monthly rate, at least equal to twelve times the highest monthly
base salary paid or payable, including any base salary which has
been earned but deferred, to the Executive by the Company and its
affiliated companies in respect of the twelve-month period
immediately preceding the month in which the Effective Date occurs.
During the Employment Period, the Annual Base Salary shall be
reviewed at least annually and shall be increased at any time and
from time to time as shall be substantially consistent with
increases in base salary generally awarded in the ordinary course
of business to other peer executives of the Company and its
affiliated companies. Any increase in Annual Base Salary shall not
serve to limit or reduce any other obligation to the Executive
under this Agreement. Annual Base Salary shall not be reduced after
any such increase and the term Annual Base Salary as utilized in
this Agreement shall refer to Annual Base Salary as so increased.
As used in this Agreement, the term “affiliated
companies” shall include any company controlled by,
controlling or under common control with the Company.
(ii) Incentive Awards . In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year ending during the Employment Period, an annual
incentive award (the “Annual Incentive Award”) and a
long-term incentive award (the “Long-Term Cash Incentive
Award” and together with the Annual Incentive Award, the
“Incentive Awards”) in cash at least equal to the
average annualized (for any fiscal year consisting of less than
twelve full months or with respect to which the Executive has been
employed by the Company for less than twelve full months) annual
incentive award and long-term cash incentive award, respectively,
paid or payable, including by reason of any deferral, to the
Executive by the Company and its affiliated companies in respect of
the three fiscal years immediately preceding the fiscal year in
which the Effective Date occurs (together, the “Recent
Incentive Awards”); provided, however, that for any year of
such three-year period in which the actual incentive awards were
less than the target level of such incentive awards, then the
target levels of such incentive awards shall be used for purposes
of the foregoing formula. Each such Annual Incentive Award and
Long-Term Cash Incentive Award shall be paid no later than two and
one-half months after the fiscal year for which the Annual
Incentive Award or the Long-Term Cash Incentive Award, as the case
may be, is awarded, unless the Executive shall elect to defer the
receipt of such Annual Incentive Award or Long-Term Cash Incentive
Award, which deferrals shall be made in accordance with the
provisions of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”).
(iii) Profit Sharing, Thrift,
Savings and Pension Plans . In addition to Annual Base Salary
and Incentive Awards payable as hereinabove provided, the Executive
shall
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be entitled to participate during the Employment
Period in all profit sharing, thrift, savings and pension plans,
practices, policies and programs generally applicable to other peer
executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide
the Executive with profit sharing opportunities (measured with
respect to both regular and special profit sharing opportunities),
thrift opportunities, savings opportunities and pension benefits
opportunities, in each case, less favorable, in the aggregate, than
the most favorable of those provided by the Company and its
affiliated companies for the Executive under such plans, practices,
policies and programs as in effect at any time during the 90-day
period immediately preceding the Effective Date or if more
favorable to the Executive, those provided generally at any time
after the Effective Date to other peer executives of the Company
and its affiliated companies.
(iv) Welfare Benefit Plans .
During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and its affiliated companies (including, without
limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent generally
applicable to other peer executives of the Company and its
affiliated companies, but in no event shall such plans, practices,
policies and programs provide benefits which are less favorable, in
the aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 90-day period immediately preceding the Effective Date
or if more favorable to the Executive, those provided generally at
any time after the Effective Date to other peer executives of the
Company and its affiliated companies.
(v) Expenses . During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and its affiliated companies in
effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
(vi) Perquisites . During the
Employment Period, the Executive shall be entitled to perquisites
in accordance with the most favorable plans, practices, programs
and policies of the Company and its affiliated companies in effect
for the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
(vii) Office and Support
Staff . During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated
companies at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
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(viii) Vacation . During the
Employment Period, the Executive shall be entitled to paid vacation
in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect
for the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
5. Termination of Employment
.
(a) Death or Disability . The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the
Company determines in good faith that the Disability of the
Executive has occurred during the Employment Period (pursuant to
the definition of “Disability” set forth below), it may
give to the Executive written notice in accordance with
Section 13(b) of this Agreement of its intention to terminate
the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the “Disability Effective Date”), provided
that, within the 30 days after such receipt, the Executive shall
not have returned to full-time performance of the Executive’s
duties. For purposes of this Agreement, “Disability”
means the absence of the Executive from the Executive’s
duties with the Company on a substantially full-time basis for 180
consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive’s legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
(b) Cause . The Company may
terminate the Executive’s employment during the Employment
Period for Cause. For purposes of this Agreement,
“Cause” shall mean:
(i) the willful and continued
failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief
Executive Officer of the Company which specifically identifies the
manner in which the Board or Chief Executive Officer believes that
the Executive has not substantially performed the Executive’s
duties, or
(ii) the willful engaging by the
Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company.
For purposes of this provision, no
act or failure to act, on the part of the Executive, shall be
considered “willful” unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable belief
that the Executive’s action or omission was in the best
interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board
or upon the instructions of the Chief Executive Officer or a senior
officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment of the Executive shall not
be deemed to be for Cause unless and until there shall have been
delivered to the Executive a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the entire
membership of the
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Board at a meeting of the Board or, if the
Company is not the ultimate parent corporation of its
affiliat
