RESTRICTED STOCK EQUIVALENT AWARD AGREEMENT
Exhibit
10.1
In
consideration of the mutual covenants
contained herein, Energizer Holdings, Inc. (“Company”), and __________
(“Recipient”) hereby agree as follows:
ARTICLE
I – COMPANY
COVENANTS
Company
hereby
covenants:
1. Award
The
Company, pursuant to its 2000 Incentive
Stock Plan (the “Plan”), grants to Recipient a Restricted Stock Equivalent Award
of ____ restricted common stock equivalents (“Equivalents”). This Award
Agreement is subject to the provisions of the Plan and to the following terms
and conditions.
2. Vesting;
Payment
Twenty-five
percent
of the total Equivalents granted to Recipient (the “Time-Vested Equivalents”)
will vest on October 10, 2010 (the “Anniversary Date”). Vesting of the remaining
Equivalents granted (the “Performance Equivalents”) is contingent upon
achievement of performance targets with respect to the Company’s CAGR, as
defined below, for the period from September 30, 2007 through September 30,
2010
(the “Measurement Period”). With respect to those Equivalents, additional
percentages of the total Equivalents granted, as indicated below, will vest
on
the date that the Company publicly releases earnings results for its 2010 fiscal
year (“the Announcement Date”) only if the respective CAGR targets are achieved
for the Measurement Period.
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CAGR
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Additional
% of Total Equivalents Vesting
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8%
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5%
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9%
|
15%
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10%
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25%
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11%
|
35%
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12%
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45%
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13%
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55%
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14%
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65%
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15%
or greater
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75%
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Upon
vesting, as
described above, each Equivalent will convert, at that time into one share
of
the Company’s $.01 par value Common Stock (“Common Stock”), which will be issued
to the Recipient. Any Equivalents which fail to vest as of the Announcement
Date
will be forfeited and the Recipient will have no further rights with respect
thereto.
3. Additional
Cash Payment
At
the time of issuance of shares of Common Stock to Recipient, as described in
paragraph 2 above, Recipient will also receive an additional cash payment equal
to the amount of dividends, if any, which would have been paid on the shares
of
Common Stock issued to him or her if the Recipient had actually acquired those
shares on the date or dates of crediting of his or her
Equivalents. No interest shall be included in the calculation of such
additional cash payment.
4. Acceleration
Notwithstanding
the
provisions of paragraph 2 above, all Equivalents granted to the Recipient (Time
Vested and Performance) will immediately vest, convert into shares of Common
Stock and be paid to the Recipient, his or her designated beneficiary, or his
or
her legal representative, in accordance with the terms of the Plan, in the
event
of:
(a)
the Recipient’s death; or
(b)
a declaration of Recipient’s total and permanent disability.
5. Acceleration
Upon a Change of Control of Company
Notwithstanding
the
provisions of paragraph 2 above, upon a Change of Control of the Company, all
Time-Vested Equivalents will immediately vest. With respect to the Performance
Equivalents, if the Change of Control occurs at or within eighteen (18) months
following the date of this Award Agreement, 25% of the total Equivalents granted
will also immediately vest. If the Change of Control occurs more than
eighteen (18) months following the date of this Award Agreement, but before
September 30, 2010, the Performance Equivalents which will immediately vest
will
be the greater of:
(a) 25%
of the total Equivalents granted, or
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(b)
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the
percentage of total Equivalents granted which would have vested under
paragraph 2 above if the Company’s CAGR on the Announcement Date was the
actual annualized CAGR, calculated on a trailing four quarters basis,
for
the period between September 30, 2007 and the last fiscal quarter
end
prior to the Change of Control for which Company financial results
were
publicly disclosed.
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Any
unvested
Equivalents which do not vest upon a Change of Control as described in this
paragraph shall be forfeited.
6. Forfeiture
All
rights in and
to any and all Equivalents granted pursuant to this Award Agreement, and to
any
shares of Common Stock into which they would convert, which have not vested
by
the Announcement Date, as described in paragraph 2 above, or as described in
paragraphs 4 and 5 above, shall be forfeited. In addition, prior to that date,
all rights in and to any and all Equivalents granted pursuant to this Award
Agreement which have not vested in accordance with the terms hereof, and to
any
shares of Common Stock into which they would convert, shall be forfeited
upon
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(a)
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the
Recipient’s voluntary or involuntary termination of
employment;
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(b)
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a
determination by the Committee that the recipient engaged in competition
with the Company;
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(c)
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a
determination by the Committee that the recipient engaged in activity
or
conduct contrary to the best interests of the Company, as described
in the
Plan; or
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(d)
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as
described
in paragraph 5 above.
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7. Shareholder
Rights; Adjustment of Equivalents
Recipient
shall not
be entitled, prior to the conversion of Equivalents into shares of Common Stock,
to any rights as a shareholder with respect to such shares of Common Stock,
including the right to vote, sell, pledge, transfer or otherwise dispose of
the
shares. Recipient shall, however, have the right to designate a
beneficiary to receive such shares of Common Stock under this Award Agreement,
subject to the provisions of Section V of the Plan. The number of
Equivalents credited to Recipient may be adjusted, in the sole discretion of
the
Nominating and Executive Compensation Committee of the Company’s Board of
Directors, in accordance with the provisions of Section VI(F) of the
Plan.
8. Other
The
Company
reserves the right, as determined by the Committee, to convert this Award
Agreement to a substantially equivalent award and to make any other modification
it may consider necessary or advisable to comply with any applicable law or
governmental regulation, or to preserve the tax deductibility of any payments
hereunder.
9. Definitions:
Change
of
Control of the Company shall be deemed to occur when (i) a
person, as defined under the U.S. securities laws, acquires beneficial ownership
of more than fifty percent (50%) of the outstanding voting securities of the
Company; or (ii) the directors of the Company immediately before a business
combination between the Company and another entity, or a proxy contest for
the
election of directors, shall, as a result thereof, cease to constitute a
majority of the Board of Directors of the Company (or a successor corporation
of
the Company).
CAGR
shall
mean the Company’s compound annual growth rate in earnings per share (as
publicly reported by the Company) for the applicable measurement period, rounded
to the nearest whole percentage. For purposes of the calculation of CAGR, the
determination of annual earnings per share will be based on all-inclusive GAAP
results, adjusted only for certain unusual items:
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·
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extraordinary
dividends;
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·
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stock
split-ups; stock dividends or
distributions;
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·
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recapitalizations;
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·
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any
merger of
the Company with another
corporation;
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·
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any
consolidation of the Company and another corporation into another
corporation;
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·
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any
separation of the Company or its business units (including a spin-off
or
other distribution of stock or property by the
Company);
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·
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any
reorganization of the Company (whether or not such reorganization
comes
within the definition of such term in Code Section
368);
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·
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any
partial
or complete liquidation by the Company; or sale of all or substantially
all of the assets of the Company;
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·
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unusual
or
non-recurring accounting impacts or changes in accounting standards
or
treatment;
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·
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unusual
or
non-recurring accounting treatments related to an acquisition by
the
Company completed during the period of the
award.
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ARTICLE
II – RECIPIENT COVENANTS
Recipient
hereby
covenants:
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1.
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Confidential
Information
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By
executing this Award 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.
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2.
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Non-Competition.
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By
executing this Award 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.
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3.
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Non-Solicitation.
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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.
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4.
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Non-Disparagement.
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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 Award 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.
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5.
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Reasonableness.
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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.
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6.
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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 Award
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 Award 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 Award Agreement, and I have had
full
opportunity, prior to agreeing to accept this Award 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 an manner permitted by
law.
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7.
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Waiver;
Survival
of Provisions.
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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 Award Agreement or any part hereof, or the right of the Company
thereafter to enforce every such provision in accordance with the terms of
this
Award 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
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1.
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Governing Law.
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All
questions
pertaining to the validity, construction, execution, and performance of this
Award 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.
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2.
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Notices.
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Any
notices
necessary or required to be given under this Award 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.
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3.
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Entire
Agreement.
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This
Award
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 Award Agreement shall be effective unless in writing
and signed by all parties hereto. This Award Agreement constitutes
the only agreement between the parties hereto with respect to the matters herein
contained.
4. Waiver.
No
change or modification of this Award Agreement shall be valid unless the same
is
in writing and signed by all the parties hereto. No waiver of any
provision of this Award 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
Award
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 Award
Agreement shall not be valid and in effect until such execution by both parties.
By the execution of this Award Agreement, Recipient signifies that Recipient
has
fully read, completely understands, and voluntarily agrees with this Award
Agreement consisting of seven (7) pages and knowingly and voluntarily accepts
all of its terms and conditions.
6. Effective
Date
This
Award
Agreement shall be deemed to be effective as of the date executed.
IN
WITNESS WHEREOF, the Company and Recipient have duly executed this Award
Agreement as of October 10, 2007.
ACKNOWLEDGED
AND
ACCEPTED: ENERGIZER
HOLDINGS, INC.
________________________________ By:_____________________________
Recipient
Xxxx X. Xxxxx
Chief Executive Officer
Recipients
X.
Xxxxx – 56,000 equivalents
X.
XxXxxxxxxxx – 14,000 equivalents
X.
Xxxxxxxx – 14,000 equivalents
D.
Sescleifer – 14,000 equivalents
X.
Xxxxxxxxx – 10,000 equivalents
X.
Xxxxxx – 8,000 equivalents
