PERFORMANCE 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 2009 Incentive
Stock Plan (the “Plan”), grants to Recipient a Restricted Stock Equivalent Award
of ____ restricted common stock equivalents (“Performance Equivalents”). This
Award Agreement is subject to the provisions of the Plan and to the following
terms and conditions.
2. Vesting;
Payment.
Vesting of the
Performance Equivalents is contingent upon achievement of performance targets
with respect to the Company’s CAGR for the period from September 30, 2009
through September 30, 2012 (the “Measurement Period”). As indicated in the
following chart, a number of Equivalents equal to 12.5% of the total Performance
Equivalents granted, as set forth in Paragraph 1 above, will vest on the date
that the Company publicly releases earnings results for its 2012 fiscal year
(the “Vesting/Payment Date”) only if 5% CAGR is achieved for the Measurement
Period, increasing proportionately, in 1/10th of
one percent increments, up to 100% of the total Performance Equivalents granted
if 12% or greater CAGR is achieved for that period. By way of example, the
following percentages will vest at the specific CAGR targets noted below.
Fractional Equivalents vesting will be rounded up to the nearest whole
number.
|
CAGR
|
Percentage Vesting
|
|
<5%
|
0
|
|
5%
|
12.5%
|
|
6%
|
25%
|
|
7%
|
37.5%
|
|
8%
|
50%
|
|
9%
|
62.5%
|
|
10%
|
75%
|
|
11%
|
87.5%
|
|
12% or
greater
|
100%
|
Upon vesting, as
described above, each Performance 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. Such shares of Common Stock shall be issued on, or
as soon as practicable after, the Vesting/Payment Date, but not later than
December 31, 2012. Any Performance Equivalents which fail to vest as of the
Vesting/Payment Date will be forfeited and the Recipient will have no further
rights with respect thereto.
3. Additional Cash
Payment.
Additional cash
payments equal to the amount of dividends, if any, which would have been paid to
the Recipient had shares of Common Stock been issued in lieu of the vesting
Equivalents, will be paid, solely with respect to the number of Performance
Equivalents vesting as of the Vesting/Payment Date, on or after such
Vesting/Payment Date, but not later than the December 31 following such
Vesting/Payment Date. No interest shall be included in the calculation of such
additional cash payment.
4. Acceleration.
Notwithstanding the
provisions of paragraph 2 above, all Performance Equivalents granted to the
Recipient 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)
|
Recipient’s
involuntary Termination of Employment, by reason of continuing disability,
immediately following exhaustion of short-term disability
benefits.
|
In
the event of acceleration upon Recipient’s death, the shares of Common Stock
into which the Performance Equivalents convert will be issued, and related
payments, if any, shall be paid, no later than (i) the 15th day
of the third calendar month following his or her death, or (ii) a date after his
or her death, but not later than the December 31st
immediately following such event.
5. Acceleration Upon a Change
of Control of Company.
Notwithstanding the
provisions of paragraph 2 above, if a Change of Control occurs at or within
eighteen (18) months following the date of this Award Agreement, 50% of the
total Performance Equivalents granted will immediately vest and convert into
shares of Common Stock. If the Change of Control occurs more than
eighteen (18) months following the date of this Award Agreement, but before the
Vesting/Payment Date, the Performance Equivalents which will immediately vest
and convert into Common Stock will be the greater of:
|
|
(a)
|
50% of the
total Performance Equivalents granted,
or
|
|
|
(b)
|
the
percentage of total Performance Equivalents granted which would have
vested under paragraph 2 above if the Company’s CAGR on the
Vesting/Payment Date was the actual annualized CAGR, calculated on a
trailing four quarters basis, for the period between September 30, 2009
and the last fiscal quarter end prior to the Change of Control for which
Company financial results were publicly
disclosed.
|
Any such shares of
Common Stock which are issued as a result of such acceleration and vesting of
Equivalents upon a Change of Control shall be issued, and related payments, if
any, shall be paid, to Recipient no later than (i) the 15th day
of the third calendar month after the Change of Control, or (ii) a date after
the Change of Control, but not later than the December 31st
immediately following the Change of Control.
In
the event of a Change of Control, any unvested Performance Equivalents which do
not vest 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 Vesting/Payment Date, as described in paragraph 2 above, or as described in
paragraphs 4 and 5 above, shall be forfeited. In addition, all rights in and to
any and all Performance 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
|
|
(a)
|
the
Recipient’s voluntary or involuntary Termination of Employment, other than
an involuntary Termination of Employment, by reason of continuing
disability, immediately following exhaustion of short-term disability
benefits;
|
|
|
(b)
|
a
determination by the Committee that the Recipient engaged in competition
with the Company;
|
|
|
(c)
|
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
|
|
|
(d)
|
as described
in paragraph 5 above.
|
7. Shareholder Rights;
Adjustment of Equivalents.
Recipient shall not
be entitled, prior to the conversion of Performance 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 Performance Equivalents credited to Recipient shall be adjusted in
accordance with the provisions of Section VI(F) of the Plan.
8. Other.
The Company
reserves the right, as determined by the Nominating and Executive Compensation
Committee of the Board of Directors of the Company (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. Shares of Common Stock shall be withheld in
satisfaction of federal, state, and local or other international withholding tax
obligations arising upon the vesting of Equivalents.
9. Delayed Payment Upon
Termination of Employment.
Subject to the
provisions of this Award concerning acceleration and payment upon death, a
payment on account of Termination of Employment may not be made until at least
six months after such Termination of Employment. Any payment otherwise due in
such six month period shall be suspended and become payable at the end of such
six month period.
10. Definitions.
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:
|
(i)
|
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
|
|
(ii)
|
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.
|
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.
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:
|
·
|
extraordinary
dividends;
|
|
·
|
stock
split-ups; stock dividends or
distributions;
|
|
·
|
recapitalizations;
|
|
·
|
any merger of
the Company with another
corporation;
|
|
·
|
any
consolidation of the Company and another corporation into another
corporation;
|
|
·
|
any
separation of the Company or its business units (including a spin-off or
other distribution of stock or property by the
Company);
|
|
·
|
any
reorganization of the Company (whether or not such reorganization comes
within the definition of such term in Code Section
368);
|
|
·
|
any partial
or complete liquidation by the Company; or sale of all or substantially
all of the assets of the Company;
|
|
·
|
unusual or
non-recurring accounting impacts or changes in accounting standards or
treatment;
|
|
·
|
unusual or
non-recurring accounting treatments related to an acquisition by the
Company completed during the period of the award;
and
|
|
·
|
unusual or
non-recurring non-cash asset impairment, such as non-cash write-downs of
goodwill or tradenames.
|
In
addition, on or before December 28, 2009, the Committee, in its sole discretion,
may adjust the 2009 base earnings per share number utilized to determine CAGR
for the Measurement Period in order to reflect non-GAAP adjustments which it
deems appropriate. In the event of such adjustments, the Company will send a
notice to Recipient indicating the base earnings per share utilized by the
Committee, which base shall be binding upon the Company and Recipient for
purposes of this Agreement.
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
RECIPIENT
COVENANTS
Recipient hereby
covenants:
1. Confidential
Information.
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.
2. Non-Competition.
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.
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 (a) 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 (b) 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 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.
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.
|
|
(a)
|
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.
|
|
|
(b)
|
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.
|
|
|
(c)
|
I irrevocably
and unconditionally consent to the service of any process, pleadings
notices or other papers in a manner permitted by
law.
|
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 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
1. Governing
Law.
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.
2. Notices.
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.
3. Entire
Agreement.
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 eight (8) 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 duly executed this Award Agreement as of October
12, 2009, and Recipient duly executed it as of ________________________,
2009.
ACKNOWLEDGED AND
ACCEPTED: ENERGIZER
HOLDINGS, INC.
________________________________ By:__________________________________
Recipient Xxxx
X. Xxxxx
Chief
Executive Officer
Recipients:
X.
Xxxxx - 60,000 Performance Equivalents
X.
XxXxxxxxxxx – 14,700 Performance Equivalents
D.
Sescleifer – 15,400 Performance Equivalents
X.
Xxxxxxxx – 15,400 Performance Equivalents
X.
Xxxxxxxxx – 11,200 Performance Equivalents
X.
Xxxxxx – 9,800 Performance Equivalents
