NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit
10.3
ENERGIZER HOLDINGS, INC. (the
"Company"), effective October 12, 2009, grants this Non-Qualified Stock Option
Agreement (“Option Agreement”) to _______________ ("Optionee") to purchase a
total of _______ shares of Common Stock of the Company ("Common Stock") at a
price of $65.63 per share pursuant to its Energizer Holdings, Inc. 2009
Incentive Stock Plan (the "Plan"). Subject to the provisions of the
Plan and the following terms, Optionee may exercise this Option from time to
time by tendering to the Company written notice of exercise together with the
purchase price in cash, or in shares of Common Stock at their Fair Market Value
as determined by the Nominating and Executive Compensation Committee (the
“Committee”), provided that such shares have been held for at least six
months.
ARTICLE
I - TERMS
OF OPTION
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1.
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Normal
Exercise. One hundred percent of this Option will become
exercisable on October 12, 2012, and remain exercisable through October
11, 2019, unless Optionee is no longer employed by the Company, in which
case the Option is exercisable only in accordance with the provisions of
paragraph 3 below.
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2.
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Acceleration. Notwithstanding
the above, any shares not previously forfeited under this Option will
become fully exercisable before October 12, 2012 upon the occurrence of
any of the following events while Optionee is employed by the
Company:
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a.
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death of
Optionee;
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b.
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Optionee's
involuntary Termination of Employment, by reason of continuing disability,
immediately following exhaustion of short-term disability
benefits.
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3.
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Acceleration
Upon a Change of Control of Company. Notwithstanding the
provisions of Paragraph 1 above, if a Change of Control of the Company
occurs on or following November 1, 2011, any shares not previously
forfeited under this Option will become fully exercisable. If a Change of
Control of the Company occurs prior to that date, no shares will
accelerate and become exercisable, except in accordance with the other
terms of this Option
Agreement.
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4. Exercise
After Certain Events. Upon the occurrence of any of the events
described below, any shares that are exercisable at that time shall remain
exercisable during the period stated below, but, in any event, not later than
October 11, 2019:
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a.
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Upon
Optionee's Termination of Employment (i) by reason of continuing
disability, immediately upon exhaustion of short-term disability benefits,
(ii) because of death, or (iii) either voluntarily or involuntarily
following attainment of age 55 with at least ten years of service (other
than a Termination for Cause), such shares that are exercisable (including
any shares that are accelerated because of such events) shall remain
exercisable for five years
thereafter.
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b.
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Upon
Optionee’s voluntary or involuntary Termination of Employment (other than
a Termination for Cause, or a Termination of Employment following
Optionee’s attainment of age 55 with at least ten years of service), such
shares that are exercisable shall remain exercisable for ninety days
thereafter.
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c.
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Upon
Optionee’s Termination for Cause, or if the Committee determines that this
Option is forfeit pursuant to Section IV of the Plan because Optionee
engaged in competition with the Company or an Affiliate, or Optionee
engaged in any activity or conduct contrary to the best interests of the
Company or any Affiliate, such shares that are then exercisable shall
remain exercisable for seven days after such Termination or
determination.
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5.
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Forfeiture. This
Option is subject to forfeiture for the reasons set forth in Section
IV.A.1, 3 or 4 of the Plan. If there is a declaration of
forfeiture, those shares that are exercisable at the time of the
declaration may be exercised as set forth in paragraph 4 above; all other
shares are forfeited.
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6.
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Definitions. Unless
otherwise defined in this Option Agreement, defined terms used herein
shall have the same meaning as set forth in the
Plan.
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Affiliates
shall mean all entities within the controlled group that includes the
Company, as defined in Code Sections 414(b) and 414(c) and the regulations
thereunder, provided that the language “at least 50 percent” shall be used
instead of “at least 80 percent” each place it appears in such
definition.
Change
of Control shall mean the following:
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(i)
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The
acquisition by one person, or more than one person acting as a group, of
ownership of stock (including Common Stock) of the Company that, together
with stock held by such person or group, constitutes more than 50% of the
total fair market value or total voting power of the stock of the Company.
Notwithstanding the above, if any person or more than one person acting as
a group, is considered to own more than 50% of the total fair market value
or total voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons will not constitute a
Change of Control; or
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(ii)
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A majority of
the members of the Company’s Board of Directors is replaced during any
twelve-month period by directors whose appointment or election is not
endorsed by a majority of the members of the Company’s Board of Directors
before the date of the appointment or
election.
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Persons will not be
considered to be acting as a group solely because they purchase or own stock of
the same corporation at the same time, or as a result of the same public
offering. However, persons will be considered to be acting as a group if they
are owners of a corporation that enters into a merger, consolidation, purchase
or acquisition of stock, or similar business transaction with the
Company.
This definition of
Change of Control shall be interpreted in accordance with, and in a manner that
will bring the definition into compliance with, the regulations under Section
409A of the Internal Revenue Code.
Termination
of Employment shall mean a “separation from service” with the Company and
its Affiliates, as such term is defined in Code Section 409A and the regulations
thereunder.
ARTICLE
II - OPTIONEE
COVENANTS
Optionee hereby
covenants:
1. Confidential
Information.
By
executing this Option Agreement, I agree that I shall not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of my assigned duties and for the benefit of
the Company, either during the period of my employment or at any time
thereafter, any nonpublic, proprietary or confidential information, knowledge or
data relating to the Company, any of its affiliates, or their businesses, which
I shall have obtained during my employment by the Company or an affiliate. The
foregoing shall not apply to information that (a) was known to the public prior
to its disclosure to me; (b) becomes known to the public subsequent to
disclosure to me through no wrongful act or mine or any of my representatives;
or (c) I am required to disclose by applicable law, regulation or legal process
(provided that I provide the Company with prior notice of the contemplated
disclosure and reasonably cooperate with the Company at its expense in seeking a
protective order or other appropriate protection of such information).
Notwithstanding clauses (a) or (b) of the preceding sentence, my obligation to
maintain such disclosed information in confidence shall not terminate if only
portions of the information are in the public domain.
2. Non-Competition.
By
executing this Option Agreement, I acknowledge that my services are of a unique
nature for the Company that are irreplaceable, and that my performance of such
services for a competing business will result in irreparable harm to the Company
and its affiliates. Accordingly, during my employment with the Company or any
affiliate and for the two (2) year period thereafter, I agree that I will not,
directly or indirectly, own, manage, operate, control, be employed by (whether
as an employee, consultant, independent contractor or otherwise, and whether or
not for compensation) or render services to any person, firm, corporation or
other entity, in whatever form, engaged in any business of the same type as any
business in which the Company or any of its affiliates is engaged on the date of
termination or in which they have proposed, on or prior to such date, to be
engaged in on or after such date and in which I have been involved to any extent
(on other than a de minimus basis) at any time during the one (1) year period
ending with my date of termination, in any locale of any country in which the
Company or any of its affiliates conducts business. This subsection shall not
prevent me from owning not more than one percent of the total shares of all
classes of stock outstanding of any publicly held entity engaged in such
business. I agree that the foregoing restrictions are reasonable,
necessary, and enforceable for the protection of the goodwill and business of
the Company.
3. Non-Solicitation.
During my
employment with the Company or an affiliate and for the two (2) year period
thereafter, I agree that I will not, directly or indirectly, individually or on
behalf of any other person, firm, corporation or other entity, knowingly
solicit, aid or induce (i) any employee of the Company or any affiliate to leave
such employment in order to accept employment with or render services to or with
any other person, firm, corporation or other entity unaffiliated with the
Company or knowingly take any action to hire or to materially assist or aid any
other person, firm, corporation or other entity in identifying or hiring any
such employee, or (ii) any customer of the Company or any affiliate to purchase
goods or services then sold by the Company or any affiliate from another person,
firm, corporation or other entity or assist or aid any other persons or entity
in identifying or soliciting any such customer. I agree that the
foregoing restrictions are reasonable, necessary, and enforceable in order to
protect the Company’s trade secrets, confidential and proprietary information,
goodwill, and loyalty.
4. Non-Disparagement.
I
agree not to make any statements that disparage the Company or its affiliates or
their respective employees, officers, directors, products or services, and the
Company, by its execution of this Option Agreement agrees that it and its
affiliates and their respective executive officers and directors shall not make
any such statements regarding me. Notwithstanding the foregoing, statements made
in the course of sworn testimony in administrative, judicial or arbitral
proceedings (including, without limitation, depositions in connection with such
proceedings) shall not be subject to this subsection.
5. Reasonableness.
In
the event any of the provisions of this Article II shall ever be deemed to
exceed the time, scope or geographic limitations permitted by applicable laws,
then such provisions shall be reformed to the maximum time, scope or geographic
limitations, as the case may be, permitted by applicable laws.
6. Equitable
Relief.
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(a)
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I acknowledge
that the restrictions contained in this Article II are reasonable and
necessary to protect the legitimate interests of the Company and its
affiliates, that the Company would not have granted me this Option
Agreement in the absence of such restrictions, and that any violation of
any provisions of this Article II will result in irreparable injury to the
Company and its affiliates. By agreeing to accept this Option Agreement, I
represent that my experience and capabilities are such that the
restrictions contained herein will not prevent me from obtaining
employment or otherwise earning a living at the same general level of
economic benefit as is currently the case. I further represent and
acknowledge that I have been advised by the Company to consult my own
legal counsel in respect of this Option Agreement, and I have had full
opportunity, prior to agreeing to accept this Option Agreement, to review
thoroughly its terms and provisions with my
counsel.
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(b)
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I agree that
the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an
equitable accounting of all earnings, profits and other benefits arising
from any violation of this Article II, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may
be entitled.
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(c)
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I irrevocably
and unconditionally consent to the service of any process, pleadings
notices or other papers in a manner permitted by
law.
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7. Waiver;
Survival of Provisions.
The failure by the
Company to enforce at any time any of the provisions of this Article II or to
require at any time performance by me of any provisions hereof, shall in no way
be construed to be a release of me or waiver of such provisions or to affect the
validity of this Option Agreement or any part hereof, or the right of the
Company thereafter to enforce every such provision in accordance with the terms
of this Option Agreement. The obligations contained in this Article II shall
survive the termination of my employment with the Company or any affiliate and
shall be fully enforceable thereafter.
ARTICLE
III - OTHER AGREEMENTS
1. Governing
Law.
All questions
pertaining to the validity, construction, execution, and performance of this
Option Agreement shall be construed in accordance with, and be governed by, the
laws of the State of Missouri, without giving effect to the choice of law
principles thereof.
2. Notices.
Any notices
necessary or required to be given under this Option Agreement shall be
sufficiently given if in writing, and personally delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
last known addresses of the parties hereto, or to such other address or
addresses as any of the parties shall have specified in writing to the other
party hereto.
3. Entire
Agreement.
This Option
Agreement constitutes the entire agreement of the parties hereto with respect to
the matters contained herein, and no modification, amendment, or waiver of any
of the provision of this Option Agreement shall be effective unless in writing
and signed by all parties hereto. This Option Agreement constitutes
the only agreement between the parties hereto with respect to the matters herein
contained.
4. Waiver.
No
change or modification of this Option Agreement shall be valid unless the same
is in writing and signed by all the parties hereto. No waiver of any
provision of this Option Agreement shall be valid unless in writing and signed
by the party against whom it is sought to be enforced.
5. Counterparts;
Effect of Recipient’s Signature.
This Option
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart. The provisions of this Option
Agreement shall not be valid and in effect until such execution by both parties,
which must occur within thirty days following the effective date of this Option
Agreement. By the execution of this Option Agreement, Recipient signifies that
Recipient has fully read, completely understands, and voluntarily agrees with
this Option Agreement consisting of six (6) pages and knowingly and voluntarily
accepts all of its terms and conditions.
6. Severability.
The invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of the remainder hereof in that jurisdiction, or
the validity or enforceability of this Option Agreement, including that
provision, in any other jurisdiction. To the extent permitted by
applicable law, the Company and Optionee each waive any provision of law that
renders any provision hereof invalid, prohibited or unenforceable in any
respect. If any provision of this Option is held to be unenforceable
for any reason, it shall be adjusted rather than voided, if possible, in order
to achieve the intent of the parties to the extent possible.
7. Effective
Date.
This Option
Agreement shall be deemed to be effective as of the date executed.
IN
WITNESS WHEREOF, the Company and Recipient have duly executed this Option
Agreement as of October 12, 2009.
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ACKNOWLEDGED
AND ACCEPTED:
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ENERGIZER
HOLDINGS, INC.
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____________________________
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Optionee
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By:_________________________
____________________________ Xxxx
X. Xxxxx
Date Chief
Executive Officer
Recipients:
X.
Xxxxx – 38,000 Options
X.
XxXxxxxxxxx – 17,500 Options
D.
Sescleifer – 25,000 Options
X.
Xxxxxxxx – 30,000 Options
X.
Xxxxxxxxx – 18,750Options
X.
Xxxxxx – 15,000 Options
