EMPLOYMENT AGREEMENT
EXHIBIT
10.1
EXECUTION
VERSION
THIS
EMPLOYMENT AGREEMENT (this “Agreement”), is made and entered into by and between
PRESTIGE BRANDS HOLDINGS,
INC. (the “Company”) and XXXXXXX XXXXXXXX (“Executive”)
as of September 2, 2009 (the “Effective Date”).
W I T N E S S E T
H:
WHEREAS, the Company desires
to employ Executive, and Executive desires to enter into the employ of the
Company, on the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of
the promises and mutual agreements contained herein and intending to be legally
bound hereby, the parties hereto agree as follows:
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1.
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EMPLOYMENT.
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Subject
to the terms and conditions of this Agreement, the Company hereby employs
Executive as its Chief Executive Officer, reporting to the Board of Directors of
the Company (the “Board”).
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2.
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DURATION OF
AGREEMENT.
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2.1 Initial
Term. Executive’s
employment shall begin as of the Effective Date, and shall continue until August
31, 2012, unless extended pursuant to Section 2.2, or
earlier terminated pursuant to any of Articles 5, 6, 7, or 8. The
specified period during which this Agreement is in effect is the
“Term.”
2.2 Extensions
of Term. For purposes of this
Agreement, September 1, 2012 and each September 1 thereafter shall be referred
to as an “Anniversary Date,” and the one-year period from each Anniversary Date
to the next shall be referred to as a “Contract Year.” On each
Anniversary Date, beginning September 1, 2012, unless either party to this
Agreement has notified the other in writing not less than six (6) months prior
to such Anniversary Date of that party’s intention to allow this Agreement to
expire and not be renewed at the end of the then-current Term, the Term shall
automatically be extended for one Contract Year on and from the applicable
Anniversary Date.
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3.
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POSITION AND
DUTIES.
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3.1 Position. Executive shall
serve as the Company’s Chief Executive Officer and, in that capacity, perform
such duties and have such responsibilities as may be prescribed from time to
time by the Board that are reasonably consistent with the position of Chief
Executive Officer and consistent with the Company’s organizational
documents. At the beginning of the Term, the Company shall appoint
Executive to the Board and, so long as Executive is serving as Chief Executive
Officer, the Company shall nominate Executive for election as a member of the
Board at each meeting of the Company’s shareholders at which the election of
Executive is subject to a vote by the Company’s shareholders and shall recommend
that the shareholders of the Company vote to elect Executive as a member of the
Board. From time to time, Executive also may be
designated
to such other offices within the Company or its subsidiaries and affiliates as
may be necessary or appropriate for the convenience of the businesses of the
Company and its subsidiaries and affiliates.
3.2 Full-Time
Efforts. Executive shall
perform and discharge faithfully, diligently and to the best of his ability his
duties and responsibilities to the Company, devote his full-time efforts to the
business and affairs of the Company, and not devote time to activities or
interests that would impair his ability to perform his obligations to the
Company. Executive shall not be precluded from reasonable charitable
and community activities and industry or professional activities, or managing
his personal business interests and investments, so long as such activities do
not interfere with the performance of Executive’s responsibilities under this
Agreement. Executive shall promote the best interests of the Company
and take no action that in any way damages the public image or reputation of the
Company, its subsidiaries or its affiliates.
3.3 Work
Standard. Executive shall
at all times comply with and abide by all terms and conditions set forth in this
Agreement, all applicable work policies, procedures and rules as may be issued
by Company from time to time, and all federal, state and local statutes,
regulations and public ordinances applicable to the performance of his duties
hereunder.
3.4 No
Employment Restriction. Executive
represents and covenants that his employment by the Company hereunder does not
violate any agreement or covenant to which he is subject or by which he is bound
and that there is no such agreement or covenant that could restrict or impair
his ability to perform his duties or discharge his responsibilities to the
Company.
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4.
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COMPENSATION AND
BENEFITS.
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4.1 Base
Salary. Subject to the
terms and conditions set forth in this Agreement, during the term the
Company shall pay Executive, and Executive shall accept a base salary (“Base
Salary”) at the rate of Five Hundred and Twenty Thousand Dollars ($520,000) per
annum. The Base Salary shall be paid in accordance with the Company’s
normal payroll practices and pro rated for partial periods, if any, based on the
actual number of days in the applicable period. The Executive shall
be entitled to periodic performance reviews (no less frequently than annually),
the first of which shall take place on or before August 2011. Beginning with the
Contract Year commencing September 1, 2012 and for each subsequent Contract
Year, Executive shall be eligible for increases in Base Salary during each
Contract Year, as may be determined and approved by the Board, taking into
account the factors that the Board then considers relevant to the salaries of
its executives.
4.2 Incentive,
Savings and Retirement Plans. During the Term,
Executive shall be eligible to participate in all incentive (including, without
limitation, long-term incentive plans), savings and retirement plans, welfare
benefit plans, practices, policies and programs (including, without limitation,
as applicable, medical, prescription, dental, disability, executive life, group
life, accidental death and travel accident insurance plans and programs)
applicable generally to senior executive officers of the Company (“Senior
Executives”), and on the same basis as such
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Senior
Executives, except as to benefits that are specifically applicable to Executive
pursuant to this Agreement. Without limiting the foregoing, the
following provisions shall apply with respect to Executive:
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(a)
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Annual Incentive Bonus
Plan. Executive shall be entitled to an annual incentive
bonus opportunity, the amount and terms of which shall be determined by
the Compensation Committee of the Board (the “Committee”), except as set
forth in the next sentence. The Executive’s annual target
(subject to such performance and other criteria as may be established by
the Committee) incentive bonus shall be 90.0% of Base Salary, subject to
proration for partial periods, if any. Notwithstanding the
foregoing and for purposes of the Executive’s bonus for the 2010 fiscal
year only, the Executive’s target incentive bonus shall be
$293,000. The performance and other criteria in respect of any
such bonus shall be determined by the Committee in its sole
discretion.
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(b)
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Signing
Payment. Executive shall be entitled to a one-time
signing payment of $175,000, to be paid at the first regular pay period
after the Effective Date. The amount of annual incentive bonus
earned pursuant to Section 4.2(a) for the Company’s 2010 fiscal year, if any,
shall be in addition to the amount of the signing
payment.
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(c)
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Equity
Awards. The Company shall grant to the Executive the
following equity awards on the Effective
Date:
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(i)
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Stock
options to purchase 1,125,000 shares of the Company’s common stock
pursuant to the Option Agreement set forth as Exhibit
A hereto (the “Option
Award”).
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(ii)
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135,000
shares of Restricted Stock pursuant to the Restricted Stock Award
Agreement set forth as Exhibit
B hereto (the “Restricted Stock
Award”).
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(d)
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Vacation. During
each year through the Term, Executive shall be granted four (4) weeks’
paid vacation in accordance with the Company’s vacation policy as in
effect and as approved by the Committee from time to time. The
timing of paid vacations shall be scheduled in a reasonable manner by the
Executive.
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(e)
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Business
Expenses. Executive shall be reimbursed for all
reasonable business expenses incurred in carrying out his duties hereunder
in accordance with the policies, practices and procedures of the Company
as in effect from time to time. Executive shall be entitled to
be reimbursed for an annual executive medical examination in accordance
with the Company’s policies as in effect from time to
time.
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(f)
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No Other
Benefits. Executive will not be entitled to any benefit
or perquisite other than as specifically set out in this Agreement or
agreed to in writing by the Company. In particular, while the
Board could determine otherwise,
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| neither Executive nor the Company presently anticipate additional Long-Term Equity Incentive Plan (the “LTIP Plan”) awards for the initial Term of this Agreement or, if this Agreement is extended, for either of the first two Contract Years. |
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5.
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TERMINATION FOR
CAUSE.
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5.1 This
Agreement may be terminated immediately at any time by the Company without any
liability owing to Executive or Executive’s beneficiaries under this Agreement,
except Base Salary through the date of termination and benefits under any plan
or agreement covering Executive (which benefits shall be governed by the terms
of such plan or agreement), under the following conditions, each of which shall
constitute “Cause” or “Termination for Cause”:
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(a)
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Any
willful act by Executive involving fraud and any willful breach by
Executive of applicable regulations of competent authorities in relation
to trading or dealing with stocks, securities, investments, regulation of
the Company’s business and the like which, in each case, a majority of the
Board determines in its sole and absolute good faith discretion materially
adversely affects the Company or Executive’s ability to perform his duties
under this Agreement;
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(b)
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Attendance
at work in a state of intoxication or otherwise being found in possession
of any prohibited drug or substance, possession of which would amount to a
criminal offense;
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(c)
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Executive’s
personal dishonesty or willful misconduct, in each case in connection with
his employment by the Company;
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(d)
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Breach
of fiduciary duty or breach of the duty of loyalty to the Company which a
majority of the Board determines in its sole and absolute good faith
discretion materially adversely affects the Company or Executive’s ability
to perform his duties under this
Agreement;
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(e)
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Assault
or other act of violence against any employee of the Company or other
person during the course of his
employment;
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(f)
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Indictment
of the Executive for any felony (other than minor traffic offenses) or any
crime involving moral turpitude;
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(g)
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Intentional
breach by the Executive of any provision of this Agreement or of any
Company policy adopted by the Board not cured within 30 days after notice
from the Board;
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(h)
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The
willful continued failure of Executive to perform substantially
Executive’s duties with the Company (other than any such failure resulting
from incapacity due to Disability) if not cured within 30 days after a
written demand for substantial performance is delivered to Executive by a
majority of
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| the Board that specifically identifies the manner in which such Board believes that Executive has not substantially performed Executive’s duties. For clarity, the failure of the Company to meet its business plans shall not be, in and of itself, grounds for Termination for Cause. |
5.2 Board
Determination of Cause. For purposes of Section 5.1, a
majority of the Board (excluding Executive) shall determine in its sole and
absolute good faith discretion whether Cause exists.
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6.
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TERMINATION UPON
DEATH.
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Notwithstanding
anything herein to the contrary, this Agreement shall terminate immediately upon
Executive’s death, and the Company shall have no further liability to Executive
or his beneficiaries under this Agreement, other than for payment of Accrued
Obligations (as defined in Section 8.2(a), and
the timely payment or provision of Other Payments (as defined in Section 8.2(c)(1)),
including without limitation benefits under such plans, programs, practices and
policies relating to death benefits, if any, as are applicable to Executive on
the date of his death. This payment shall be paid in a lump sum to
the Executive’s estate within 90 days after the Company is given notice of the
Executive’s death. The rights of the Executive’s estate with respect
to stock options and restricted stock, and all other benefit plans, shall be
determined in accordance with the specific terms, conditions and provisions of
the applicable agreements and plans.
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7.
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DISABILITY.
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If the
Company determines in good faith that the Disability of Executive has occurred
during the Term (pursuant to the definition of Disability set forth below), it
may give to Executive written notice of its intention to terminate Executive’s
employment. In such event, Executive’s employment with the Company
shall terminate effective on the 30th day after receipt of such written notice
by Executive (the “Disability Effective Date”), provided that, within the 30
days after such receipt, Executive shall not have returned to full-time
performance of Executive’s duties. If Executive’s employment is
terminated by reason of his Disability, this Agreement shall terminate without
further obligations to Executive, other than for payment of Accrued Obligations
(as defined in Section
8.2(a) and the timely payment or provision of Other
Payments (as defined in Section 8.2(c)(1),
including without limitation benefits under such plans, programs, practices and
policies relating to disability benefits, if any, as are applicable to Executive
on the Disability Effective Date. The rights of the Executive with
respect to stock options and restricted stock, and all other benefit plans,
shall be determined in accordance with the specific terms, conditions and
provisions of the applicable agreements and plans. Notwithstanding
the foregoing, it is the intention of the Company and Executive that should he
be terminated by reason of Disability before he is eligible for long-term
disability benefits under the Company’s long-term disability plans and policies
on the Disability Effective Date, that the Company would continue to employ
Executive until such time as Executive has become eligible for such long-term
disability benefits. During this period: the Company would be
entitled to appoint a new Chief Executive Officer and Executive would cease to
occupy such position (which change would not be an event constituting Good
Reason); the Company would not be obligated to maintain Executive’s salary at
its current level; and Executive’s LTIP awards would
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For
purposes of this Agreement, “Disability” means the Executive’s inability by
reason of mental or physical incapacity, illness or disability to perform his
duties hereunder for a period of either 90 consecutive days or an aggregate of
120 days in any 12 month period, as determined by the Board in its sole
discretion.
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8.
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TERMINATION OF
EMPLOYMENT FOR GOOD REASON OR WITHOUT
CAUSE.
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8.1 Executive’s
Termination of Employment for Good Reason. Executive’s
employment may be terminated at any time by Executive for Good Reason or no
reason. For purposes of this Agreement, “Good Reason” shall
mean:
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(a)
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Other
than his removal for Cause pursuant to Article 5,
without the written consent of Executive, the assignment to Executive of
any duties inconsistent in any material respect with Executive’s position
(including status, offices, titles and reporting requirements), authority,
duties or responsibilities as in effect on the Effective Date, or any
other action by the Company which results in a demonstrable diminution in
such position, authority, duties or responsibilities; but excluding, for
this purpose an isolated, insubstantial and inadvertent action not taken
in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by
Executive;
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(b)
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A
reduction by the Company in Executive’s Base Salary as in effect on the
Effective Date or as the same may be increased from time to
time;
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(c)
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A
reduction by the Company in Executive’s annual target incentive bonus
(expressed as a percentage of Base Salary) during the Term unless such
reduction is a part of an across-the-board decrease in target incentive
bonuses affecting all other Senior Executives, in which case Good Reason
shall exist only if the decrease (considered as a percentage relative to
the prior percentage used to determine annual target incentive bonus) to
Executive is disproportionately
large;
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(d)
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The
Company’s giving notice under Section 2.2 of its intention not to renew this Agreement
unless at the time of such notice the Company could terminate this
Agreement and Executive’s employment for “Cause,” or for Disability, or if
Executive shall have reached the age of 65 by the applicable Anniversary
Date;
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(e)
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The
Company’s requiring Executive, without his consent, to be based at any
office or location more than fifty (50) miles from the Company’s current
headquarters in Irvington, New
York;
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(f)
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The
material breach by the Company of any provision of this
Agreement;
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(g)
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A
“Change in Control” (as defined in the LTIP Plan) occurs and the successor
(if any and applicable) (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company fails to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place, which
shall be deemed to have occurred if, after the Change in Control,
Executive is not the Chief Executive Officer or equivalent of a company
whose shares are publicly traded on a recognized securities exchange or
inter-dealer quotation system; or
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(h)
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The
failure of the Company to appoint Executive to the Board or, once
Executive has been appointed to the Board, the failure to nominate
Executive for election to the Board pursuant to Section
3.1.
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Good
Reason shall not include Executive’s death or Disability. Executive’s
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason hereunder, provided that
Executive raises to the attention of the Board any circumstance he believes in
good faith constitutes Good Reason within ninety (90) days after occurrence or
be foreclosed from raising such circumstance thereafter, provided that no such
obligation shall apply to any circumstance described in subparagraph (d)
above. The Company shall have an opportunity to cure any claimed
event of Good Reason (other than under subparagraphs (g) or (d) above) within 30
days of notice from Executive before Executive may terminate for Good
Reason.
If
Executive terminates his employment for Good Reason, he shall be entitled to the
same benefits he would be entitled to under Article 8 as if terminated without Cause subject to the execution
and effectiveness of a Release, to the extent required under Section
8.2. If Executive terminates his employment without Good
Reason, this Agreement shall terminate without further obligations to Executive,
other than for payment of Accrued Obligations (as defined in Section 8.2(a) and the timely payment or provision of Other
Benefits (as defined in Section 8.2(c)(1)).
8.2 Termination
of Employment Without Cause. If Executive’s
employment is terminated by the Company without Cause prior to the expiration of
the Term (it being understood by the parties that termination by death or
Disability shall not constitute termination without Cause), then Executive shall
be entitled to the following benefits, subject to Section
8.4:
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(a)
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The
Company shall pay to Executive in a lump sum in cash within 30 days
following the Executive's Termination of Employment, the sum of (i)
Executive’s Base Salary through the date of termination to the extent not
theretofore paid, (ii) any accrued expenses and vacation pay to the extent
not theretofore paid, and (iii) unless Executive has elected a different
payout date
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| in a prior deferral election, any compensation previously deferred by Executive under a plan other than a tax-qualified plan (together with any accrued interest or earnings thereon) to the extent not theretofore paid (the sum of the amounts described in subparagraphs (i), (ii) and (iii) shall be referred to in this Agreement as the “Accrued Obligations”); |
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(b)
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Subject
to the Executive’s execution and delivery of a Release, the Company shall
pay to Executive, starting on the 60th day following the Executive’s
Termination of Employment, in installments ratably over twelve (12) months
in accordance with the Company’s normal payroll cycle and procedures, an
amount equal to 1.5 times the sum of: (i) Executive’s annual
Base Salary in effect as of the date of termination; plus (ii) Executive’s
Average Annual Incentive Bonus (as defined below). For purposes
of this Agreement, “Average Annual Incentive Bonus” means the average
annual incentive bonus actually earned by Executive in the three fiscal
years immediately preceding the fiscal year in which Executive’s
Termination of Employment date falls, provided, however, that (A) if the
Executive has been employed by the Company for fewer than three fiscal
years, the Average Annual Incentive Bonus shall mean the average annual
incentive bonus actually earned during the Term; (B) if the Executive is
terminated during the Company’s 2010 fiscal year, Average Annual Incentive
Bonus shall mean $293,000; and (C) for purposes of determining the Average
Annual Incentive Bonus for any period after the Company’s 2010 fiscal
year, the calculation of which includes the annual incentive bonus paid in
respect of Company’s 2010 fiscal year, the 2010 annual incentive bonus
shall be deemed to be the sum of (x) the amount earned under Section
4.2(a) for fiscal 2010 plus (y) the amount
paid under Section 4.2(b).
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(c)
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Code Section 280G
Excise Tax.
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(1)
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In
the event that any payment or benefit received or to be received by the
Executive pursuant to the terms of this Agreement (the “Contract
Payments”) or in connection with the Executive’s termination of employment
or contingent upon a Change in Control (as defined in Code Section 280G
and the regulations thereunder) pursuant to any plan or arrangement or
other agreement with the Company or from any entity that is a member of
the Company’s “affiliated group” (as defined under Code Section 1504(a)
without regard to Code Section 1504(b)) (“Other Payments” and, together
with the Contract Payments, the “Payments”) would be subject to the excise
tax (the “Excise Tax”) imposed by Code Section 4999, as determined as
provided below, the Company shall pay to the Executive, at the time
specified in Section 8.2(c)(4) below, an additional amount (the
“Gross-Up Payment”) such that the net amount retained by the Executive,
after deduction of all taxes, interest and penalties (in each case
relating to any excise tax under Section 4999, employment or ordinary
income tax and not any tax imposed under Code Section 409A) and other
amounts required to be paid upon the payment
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| provided for by this Section 8.2(c), and any such interest, penalties, or additions to employment or ordinary income tax payable by the Executive with respect thereto, shall be equal to the total present value of the Excise Taxes imposed upon the Payments; provided, however, that if the Executive’s Payments are less than 110% of the amount of the Payments which could be paid to the Executive under Code Section 280G without causing the imposition of the Excise Tax, then the Payment shall be limited to the largest amount payable (as described above) without resulting in the imposition of any Excise Tax (such amount, the “Capped Amount”). |
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(2)
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For
purposes of determining the Gross-Up Payment, whether any of the Payments
will be subject to the Excise Tax and the amounts of such Excise Tax, (i)
the total amount of the Payments shall be treated as “parachute payments”
within the meaning of Code Section 280G(b)(2), and all “excess parachute
payments” within the meaning of Code Section 280G(b)(1) shall be treated
as subject to the Excise Tax, except to the extent that, in the opinion of
independent tax counsel selected by the Company’s independent auditors and
reasonably acceptable to the Executive (“Tax Counsel”), a Payment (in
whole or in part) does not constitute a “parachute payment” within the
meaning of Code Section 280G(b)(2), or such “excess parachute payments”
(in whole or in part) are not subject to the Excise Tax, (ii) the amount
of the Payments that shall be treated as subject to the Excise Tax shall
be equal to the lesser of (A) the total amount of the Payments or (B) the
amount of “excess parachute payments” within the meaning of Code Section
280G(b)(1) (after applying clause (i) hereof), and (iii) the value of any
noncash benefits or any deferred payment or benefit shall be determined by
Tax Counsel in accordance with the principles of Code Sections 280G(d)(3)
and (4). For purposes of determining the amount of the Gross-Up
Payment, the Executive shall be deemed to pay federal income tax at the
highest marginal rates of federal income taxation applicable to
individuals in the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the highest effective rates of
taxation applicable to individuals as are in effect in the state and
locality of the Executive’s residence in the calendar year in which the
Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes that can be obtained from deduction of such state and local
taxes, taking into account any limitations applicable to individuals
subject to federal income tax at the highest marginal
rates.
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(3)
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If
the Tax Counsel reasonably determines that any Excise Tax is payable by
the Executive and that the criteria for reducing the Payments to the
Capped Amount (as described in Section 8.2(c)(1) above) is met, then the Company shall reduce the
Payments by the amount which, based on the Tax Counsel’s determination and
calculations, would provide the Executive with the Capped Amount, and pay
to the Executive such
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| reduced Payments; provided that the Company shall first reduce the severance payment under Section 8.2(b). If the Tax Counsel determines that an Excise Tax is payable, without reduction pursuant to Section 8.2(c)(1), above, the Company shall pay the required Gross-Up Payment to, or for the benefit of, the Executive within the time specified in Section 8.2(c)(4). If the Tax Counsel determines that no Excise Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal, state, local income or other tax return. Any determination by the Tax Counsel as to the amount of the Gross-Up Payment shall be binding upon the Company and the Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. |
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(4)
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The
Gross-Up Payments provided for in Section 8.2(c)(1) through Section 8.2(c)(3) hereof shall be made upon the earlier of (i) the
payment to the Executive of any Contract Payment or Other Payment or (ii)
the imposition upon the Executive or payment by the Executive of any
Excise Tax, provided, however, that in the event of Executive’s
termination for Good Reason as provided by Section 8.1(g),
such payment shall be made on the date of the transaction which
constitutes a Change in Control for purposes of such Section
8.1(g).
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(5)
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The
Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the
Company of a Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than 10 business days after the
Executive is informed in writing of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim
prior to the expiration of the 30-day period following the date on which
the Executive gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due). If the Company notifies the Executive in writing prior to
the expiration of such period that it desires to contest such claim, the
Executive shall:
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(a)
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give
the Company any information reasonably requested by the Company relating
to such claim;
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(b)
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take
such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company and reasonably satisfactory
to the Executive;
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(c)
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cooperate
with the Company in good faith in order to effectively contest such claim;
and
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(d)
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permit
the Company to participate in any proceedings relating to such
claim;
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provided,
however, that the Company shall bear and pay directly all costs and expenses
(including, but not limited to, additional interest and penalties and related
legal, consulting or other similar fees, but excluding any tax or penalty
associated with Code Section 409A) incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any
Excise Tax or other tax (including interest and penalties with respect thereto,
but excluding any tax or penalty associated with Code Section 409A) imposed as a
result of such representation and payment of costs and expenses.
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(6)
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The
Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option,
either direct the Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the Executive agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive on an
interest-free basis, and shall indemnify and hold the Executive harmless,
on an after-tax basis, from any Excise Tax or other tax (including
interest or penalties with respect thereto, but excluding any tax or
penalty associated with Code Section 409A) imposed with respect to such
advance or with respect to any imputed income with respect to such
advance; and provided, further, that if the Executive is required to
extend the statute of limitations to enable the Company to contest such
claim, the Executive may limit this extension solely to such contested
amount. The Company’s control of the contest shall be limited
to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority. In addition, no position may be taken
nor any final resolution be agreed to by the Company without the
Executive’s consent if such position or resolution could reasonably be
expected to adversely affect the Executive (including any other tax
position of the Executive unrelated to the matters covered
hereby).
|
|
(7)
|
As
a result of the uncertainty in the application of Code Section 4999 at the
time of the initial determination by the Company or the Tax Counsel
|
11
| hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of the Executive. |
|
(8)
|
If,
after the receipt by the Executive of the Gross-Up Payment or an amount
advanced by the Company in connection with the contest of an Excise Tax
claim, the Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall promptly pay to the Company the amount
of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company in connection with an
Excise Tax claim, a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest the denial of
such refund prior to the expiration of 30 days after such determination,
such advance shall be forgiven and shall not be required to be
repaid.
|
|
(9)
|
Notwithstanding
the other provisions of this Section 8.2(c) and Section 12.15, all
Gross-Up Payments shall be made to the Executive not later than the end of
the calendar year following the year in which the Executive remits the
related taxes and any reimbursement of the costs and expenses described in
Section 8.2(c)(5) shall be paid not later than the end of the calendar
year following the year in which there is a final and nonappealable
resolution of, or the taxes are remitted that are the subject of, the
related claim.
|
8.3 Definition
of Termination of Employment. With respect to
the payment of all benefits under this Article 8,
“Termination of Employment” shall mean “separation from service” as defined in
Code Section 409A and regulations issued thereunder.
8.4 Restrictions
on Timing of Distributions. The following
restrictions shall apply to payments under this Article 8:
|
(a)
|
Release
Requirement. No payment shall be made under Section 8.2(b) unless the Executive delivers to the Company
a release in the form of Exhibit
C in favor of the Company (a “Release”), without revocation
thereof, no later than forty-five (45) days after Executive’s Termination
of Employment date and no such payment or benefit hereunder shall be
provided to Executive prior to the Company’s receipt of such Release and
the expiration of any period of revocation provided for in the
Release.
|
12
|
(b)
|
Restriction on Timing
of Distributions. Notwithstanding any provision of this
Agreement to the contrary, if the Executive is considered a Specified
Employee at Termination of Employment other than on account of death or
Disability, under such procedures as established by the Company in
accordance with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), all payments hereunder that are subject to Code
Section 409A, and for which the payment event is Termination of Employment
may not commence earlier than six (6) months after the date of Termination
of Employment. Therefore, in the event this provision is
applicable to the Executive, any such payment which would otherwise be
paid to the Executive within the first six months following termination
shall be accumulated and paid to the Executive in a lump sum on the first
day of the seventh month following Termination of
Employment. All subsequent distributions shall be paid in the
manner specified. “Specified Employee” means a “specified
employee” as defined in Code Section 409A and regulations
thereunder.
|
8.5 Rights
under Equity Plans. The provisions of
this Agreement are subject to the terms of the Company’s equity plans in effect
from time to time, including the LTIP Plan. Any equity awards granted
to you under the equity plans shall be forfeited or not, vest or not, and, in
the case of stock options, become exercisable or not, as provided by and subject
to the terms of the applicable equity plan.
8.6 Resignation. Upon the
termination of Executive’s employment, Executive shall execute resignations from
all positions held as a director of the Company and, if applicable, as a
director or an officer of a company affiliated or related to the Company held at
the time of such termination.
|
9.
|
PUBLICITY; NO
DISPARAGING STATEMENT.
|
Executive
and the Company covenant and agree that they shall not engage in any
communications which shall disparage one another or interfere with their
existing or prospective business relationships.
|
10.
|
BUSINESS PROTECTION
PROVISIONS.
|
10.1 Preamble. As a material
inducement to the Company to enter into this Agreement, and its recognition of
the valuable experience, knowledge and proprietary information Executive will
gain from his employment with the Company, Executive warrants and agrees he will
abide by and adhere to the following business protection provisions in this
Article 10 and all sections and subsections thereof.
10.2 Definitions. For purposes of
this Article 10 and all sections and subsections thereof, the
following terms shall have the following meanings:
|
(a)
|
“Competitive
Position” shall mean any employment, consulting, advisory, directorship,
agency, promotional or independent contractor arrangement between the
Executive and any person or Entity engaged in a line of
|
13
| business that competes directly with any brand of the Company or any of its affiliates or subsidiaries (collectively the “PBH Entities”) whereby Executive is required to or does perform services on behalf of or for the benefit of such person or Entity which are substantially similar to the services in which Executive participated or that he directed or oversaw while employed by the Company. |
|
(b)
|
“Confidential
Information” shall mean the proprietary or confidential data, information,
documents or materials (whether oral, written, electronic or otherwise)
belonging to or pertaining to the PBH Entities, other than “Trade Secrets”
(as defined below), which is of tangible or intangible value to any of the
PBH Entities and the details of which are not generally known to the
competitors of the PBH Entities. Confidential Information shall
also include: any items that any of the PBH Entities have
marked “CONFIDENTIAL” or some similar designation or are otherwise
identified as being confidential.
|
|
(c)
|
“Entity”
or “Entities” shall mean any business, individual, partnership, joint
venture, agency, governmental agency, body or subdivision, association,
firm, corporation, limited liability company or other entity of any
kind.
|
|
(d)
|
“Restricted
Period” shall mean eighteen (18) months following termination of
Executive’s employment hereunder; provided, however, that the Restricted
Period shall be extended for a period of time equal to any period(s) of
time within the eighteen (18) month period following termination of
Executive’s employment hereunder that Executive is determined by a court
of competent jurisdiction to have engaged in any conduct that violates
this Article
10 or any sections or subsections thereof, the
purpose of this provision being to secure for the benefit of the Company
the entire Restricted Period being bargained for by the Company for the
restrictions upon the Executive’s
activities.
|
|
(e)
|
“Territory”
shall mean each of the United States of America or any country other than
the United States of America in which the Company shall transact business
during the Term.
|
|
(f)
|
“Trade
Secrets” shall mean information or data of or about any of the PBH
Entities, including, but not limited to, technical or non-technical data,
customer lists, pricing models, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial
data, financial plans, product plans or lists of actual or potential
suppliers that derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or
use; and any other information which is defined as a “trade secret” under
applicable law.
|
14
|
(g)
|
“Work
Product” shall mean all tangible work product, property, data,
documentation, “know-how,” concepts or plans, inventions, improvements,
techniques and processes relating to the PBH Entities that were conceived,
discovered, created, written, revised or developed by Executive during the
term of his employment with the
Company.
|
10.3 Nondisclosure; Ownership of
Proprietary Property.
|
(a)
|
In
recognition of the need of the PBH Entities to protect their legitimate
business interests, Confidential Information and Trade Secrets, Executive
hereby covenants and agrees that Executive shall regard and treat Trade
Secrets and all Confidential Information as strictly confidential and
wholly-owned by the PBH Entities and shall not, for any reason, in any
fashion, either directly or indirectly, use, sell, lend, lease,
distribute, license, give, transfer, assign, show, disclose, disseminate,
reproduce, copy, misappropriate or otherwise communicate any such item or
information to any third party or Entity for any purpose other than in
accordance with this Agreement or as required by applicable law, court
order or other legal process.
|
|
(b)
|
Executive
shall exercise best efforts to ensure the continued confidentiality of all
Trade Secrets and Confidential Information, and he shall immediately
notify the Company of any unauthorized disclosure or use of any Trade
Secrets or Confidential Information of which Executive becomes
aware. Executive shall assist the PBH Entities, to the extent
necessary, in the protection of or procurement of any intellectual
property protection or other rights in any of the Trade Secrets or
Confidential Information.
|
|
(c)
|
All
Work Product shall be owned exclusively by the PBH Entities. To
the greatest extent possible, any Work Product shall be deemed to be “work
made for hire” (as defined in the Copyright Act, 17 U.S.C.A. § 101 et seq., as amended),
and Executive hereby unconditionally and irrevocably transfers and assigns
to applicable PBH Entity all right, title and interest Executive currently
has or may have by operation of law or otherwise in or to any Work
Product, including, without limitation, all patents, copyrights,
trademarks (and the goodwill associated therewith), trade secrets, service
marks (and the goodwill associated therewith) and other intellectual
property rights. Executive agrees to execute and deliver to the
applicable PBH Entity any transfers, assignments, documents or other
instruments which the Company may deem necessary or appropriate, from time
to time, to protect the rights granted herein or to vest complete title
and ownership of any and all Work Product, and all associated intellectual
property and other rights therein, exclusively in the applicable PBH
Entity.
|
15
10.4 Non-Interference with
Executives.
Executive
recognizes and acknowledges that, as a result of his employment by Company, he
will become familiar with and acquire knowledge of confidential information and
certain other information regarding the other executives and employees of the
PBH Entities. Therefore, Executive agrees that, during the Restricted
Period, Executive shall not encourage, solicit or otherwise attempt to persuade
any person in the employment of the PBH Entities to end his/her employment with
a PBH Entity or to violate any policy of any PBH Entity or any confidentiality,
non-competition or employment agreement that such person may have with a PBH
Entity. Furthermore, neither Executive nor any person acting in
concert with the Executive nor any of Executive’s affiliates shall, during the
Restricted Period, employ any person who has been an executive or management
employee of any PBH Entity unless that person has ceased to be an employee of
the PBH Entities for at least six (6) months.
10.5 Non-Competition.
Executive
covenants and agrees to not obtain or work in a Competitive Position within the
Territory during the Term or during the Restricted Period. Executive
and Company recognize and acknowledge that the scope, area and time limitations
contained in this Agreement are reasonable and are properly required for the
protection of the business interests of Company due to Executive’s status and
reputation in the industry and the knowledge to be acquired by Executive through
his association with Company’s business and the public’s close identification of
Executive with Company and Company with Executive. Further, Executive
acknowledges that his skills are such that he could easily find alternative,
commensurate employment or consulting work in his field that would not violate
any of the provisions of this Agreement. Executive acknowledges and
understands that, as consideration for his execution of this Agreement and his
agreement with the terms of this covenant not to compete, Executive will receive
employment with and other benefits from the Company in accordance with this
Agreement
10.6 Remedies.
Executive
understands and acknowledges that his violation of this Article 10 or any section or subsection thereof would cause
irreparable harm to Company and Company would be entitled to an injunction by
any court of competent jurisdiction enjoining and restraining Executive from any
employment, service, or other act prohibited by this Agreement. The
parties agree that nothing in this Agreement shall be construed as prohibiting
Company from pursuing any remedies available to it for any breach or threatened
breach of this Article
10 or any section or subsection thereof, including,
without limitation, the recovery of damages from Executive or any person or
entity acting in concert with Executive. If any part of this Article 10 or any section or subsection thereof is found to be
unreasonable, then it may be amended by appropriate order of a court of
competent jurisdiction to the extent deemed reasonable. Furthermore
and in recognition that certain severance payments are being agreed to in
reliance upon Executive’s compliance with this Article 10 after termination of his employment, in the event
Executive breaches any of such business protection provisions of this Agreement,
any unpaid amounts (e.g., those provided under Article 8) shall
be forfeited and Company shall not be obligated to
16
make any
further payments or provide any further benefits to Executive following any such
breach.
|
11.
|
RETURN OF MATERIALS;
BOARD RESIGNATION.
|
Upon
Executive’s termination, or at any point after that time upon the specific
request of the Company, Executive shall return to the Company all written or
descriptive materials of any kind belonging or relating to the Company or its
affiliates, including, without limitation, any originals, copies and abstracts
containing any Work Product, intellectual property, Confidential Information and
Trade Secrets in Executive’s possession or control. In addition, upon
the termination of Executive’s employment with the Company, upon the request of
the Board, Executive shall submit, and upon the failure to do so, shall be
deemed to have submitted his resignation as a member of the Board effective upon
the termination of employment.
|
12.
|
GENERAL
PROVISIONS.
|
12.1 Amendment. This Agreement
may be amended or modified only by a writing signed by both of the parties
hereto.
12.2 Binding
Agreement. This Agreement
shall inure to the benefit of and be binding upon Executive, his heirs and
personal representatives, and the Company and its successors and
assigns.
12.3 Waiver of
Breach; Specific Performance. The waiver of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other breach. Each of the parties to this Agreement
will be entitled to enforce its or his rights under this Agreement,
specifically, to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights existing in its or his
favor. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that any party may in its or his sole discretion apply to any court of law
or equity of competent jurisdiction for specific performance or injunctive
relief in order to enforce or prevent any violations of the provisions of this
Agreement.
12.4 Indemnification
and Insurance. The Company shall
indemnify and hold the Executive harmless to the maximum extent permitted by law
against judgments, fines, amounts paid in settlement and reasonable expenses,
including reasonable attorneys’ fees incurred by the Executive, in connection
with the defense of, or as a result of any action or proceeding (or any appeal
from any action or proceeding) in which the Executive is made or is threatened
to be made a party by reason of the fact that he is or was an officer of the
Company or any affiliate. In addition, the Company agrees that the
Executive is and shall continue to be covered and insured up to the maximum
limits provided by all insurance which the Company maintains to indemnify its
directors and officers (as well as any insurance that it maintains to indemnify
the Company for any obligations which it incurs as a result of its undertaking
to indemnify its officers and directors) and that the Company will exert
commercially reasonable efforts to maintain such insurance, in not less than its
present limits, in effect throughout the term of the Executive’s employment;
provided that the Company will not be required to pay premiums of more than 200%
of the current premium to do so.
17
12.5 Tax
Withholding. There shall be
deducted from each payment under this Agreement the amount of any tax required
by any governmental authority to be withheld and paid over by the Company to
such governmental authority for the account of Executive.
12.6 Notices.
All
notices and all other communications provided for herein shall be in writing and
delivered personally to the other designated party, or mailed by certified or
registered mail, return receipt requested, or delivered by a recognized national
overnight courier service, or sent by facsimile, as follows:
|
|
If
to Company to:
|
|
|
Attn: General
Counsel’s Xxxxxx
|
|
|
00
Xxxxx Xxxxxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Facsimile: (000)
000-0000
|
|
|
If
to Executive to:
|
Xxxx
Xxxxxxxx
|
|
|
000
Xxxxxxxxxx Xxxx
|
|
|
Xxx
Xxxxxx, XX 00000
|
|
|
Facsimile:
_____________
|
All
notices sent under this Agreement shall be deemed given twenty-four (24) hours
after sent by facsimile or courier, seventy-two (72) hours after sent by
certified or registered mail and when delivered if personal
delivery. Either party hereto may change the address to which notice
is to be sent hereunder by written notice to the other party in accordance with
the provisions of this Section.
12.7 Governing
Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware (without giving effect to the conflict of laws provisions
thereof).
12.8 Entire
Agreement. This Agreement
contains the full and complete understanding of the parties hereto with respect
to the subject matter contained herein and this Agreement supersedes and
replaces any prior agreement, either oral or written, which Executive may have
with the Company that relates generally to the same subject matter.
12.9 Assignment. This Agreement
may not be assigned by Executive without the prior written consent of Company,
and any attempted assignment not in accordance herewith shall be null and void
and of no force or effect. It may be assigned by the Company to any
successor to all or substantially all of its business.
12.10 Severability. If any one or
more of the terms, provisions, covenants or restrictions of this Agreement shall
be determined by a court of competent jurisdiction to be invalid, void or
unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect, and to
that end the provisions hereof shall be deemed severable.
18
12.11 Section
and Paragraph Headings. The section and
paragraph headings set forth herein are for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement
whatsoever.
12.12 Interpretation. Should a
provision of this Agreement require judicial interpretation, it is agreed that
the judicial body interpreting or construing the Agreement shall not apply the
assumption that the terms hereof shall be more strictly construed against one
party by reason of the rule of construction that an instrument is to be
construed more strictly against the party which itself or through its agents
prepared the agreement, it being agreed that all parties and/or their agents
have participated in the preparation hereof.
12.13 Arbitration.
|
(a)
|
Except
as provided in subsection (b) of this Section 12.13,
the following provisions shall apply to disputes between Company and
Executive arising out of or related to either: (i) this
Agreement (including any claim that any part of this agreement is invalid,
illegal or otherwise void or voidable), or (ii) the employment
relationship that exists between Company and
Executive:
|
|
(i)
|
The
parties shall first use their best efforts to discuss and negotiate a
resolution of the dispute.
|
|
(ii)
|
If
efforts to negotiate a resolution do not succeed within 5 business days
after a written request for negotiation has been made, the dispute shall
be resolved timely and exclusively by final and binding arbitration
pursuant to the American Arbitration Association (“AAA”) National Rules
for the Resolution of Employment Disputes (the “AAA
Rules”). Arbitration must be demanded within ten (10) calendar
days after the expiration of the five (5) day period referred to
above. The arbitration opinion and award shall be final and
binding on the Company and the Executive and shall be enforceable by any
court sitting within Westchester County, New York. Company and
Executive shall share equally all costs of arbitration excepting their own
attorney’s fees unless and to the extent ordered by the arbitrator(s) to
pay the attorneys’ fees of the prevailing
party.
|
|
(iii)
|
The
parties recognize that this Section 12.13 means that certain claims will be reviewed
and decided only before an impartial arbitrator or panel of arbitrators
instead of before a court of law and/or a jury, but desire the many
benefits of the arbitration process over court proceedings, including
speed of resolution, lower costs and fees, and more flexible rules of
evidence. The arbitrator or arbitrators duly selected pursuant
to the AAA’s Rules shall have the same power and authority to order any
remedy for violation of a statute, regulation, or ordinance as a court
would
|
19
| have; and shall have the same power to order discovery as a federal district court has under the Federal Rule of Civil Procedure. |
|
(b)
|
|
(c)
|
12.14 Voluntary
Agreement. Executive and
Company represent and agree that each has reviewed all aspects of this
Agreement, has carefully read and fully understands all provisions of this
Agreement, and is voluntarily entering into this Agreement. Each
party represents and agrees that such party has had the opportunity to review
any and all aspects of this Agreement with legal, tax or other adviser(s) of
such party’s choice before executing this Agreement.
12.15 Nonqualified
Deferred Compensation Omnibus Provision. It is intended
that any compensation provided under this Agreement be administered and paid in
a manner which will not result in the imposition of additional federal income
taxes on the Executive under Code Section 409A. The provisions of
this Agreement relating to amounts which constitute deferred compensation under
Code Section 409A are intended to be construed accordingly. If any
compensation or benefits provided by this Agreement may result in the
application of Section 409A of the Code, the Company shall, at the request of
the Executive, seek to modify this Agreement in the least restrictive manner
necessary in order to comply with the provisions of Section 409A and/or any
rules, regulations or other regulatory guidance issued under such statutory
provision and without any diminution in the value of the payments to the
Executive; provided, however, that in connection with any such modification the
Company shall not be required to increase amounts or benefits otherwise payable
to or provided to Executive. Notwithstanding anything in this
Agreement to the contrary, to the extent necessary to comply with Code Section
409A, (a) the amount of any expenses eligible for reimbursement or the provision
of any in-kind benefits under this Agreement in any taxable year of the
Executive shall not affect the expenses eligible for reimbursement or the
provision of in-kind benefits in any other taxable year, and (b) the
reimbursement of expenses or in-kind benefits under this Agreement shall be made
or provided no later than on or before the last day of the Executive’s taxable
year following the taxable year in which the expense was incurred, except to the
extent earlier reimbursement is required under this Agreement or applicable
Company policies and procedures.
* * * *
20
EXECUTION
VERSION
IN
WITNESS WHEREOF, the parties hereto have executed, or caused their duly
authorized representative to execute, this Agreement as of this 2nd day
of September, 2009.
| PRESTIGE BRANDS HOLDINGS, INC. | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Lead Director | |||
| EXECUTIVE | |||
| /s/ Xxxxxxx X. Xxxxxxxx | |||
| Xxxxxxx Xxxxxxxx | |||
EXHIBIT
A
Not filed
because substantially identical to Exhibit 10.28 to the Company's Annual Report
on Form 10-K, filed with the Securities and Exchange Commission on June 14,
2007.
EXHIBIT
B
Not filed
because substantially identical to Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q, filed with the Securities and Exchange Commission on August
9, 2005.
EXHIBIT C
Form of Release
GENERAL
RELEASE
THIS
GENERAL RELEASE (“Agreement”) is made and entered into by and between Prestige
Brands Holdings, Inc. (“Employer”) and [____________]
(“Executive”).
WHEREAS,
Employer and Executive are parties to an Employment Agreement dated as of
[____________] (the “Employment Agreement”); and
WHEREAS,
Employer and Executive wish to conclude their employment relationship amicably
and on mutually satisfactory terms and to settle fully and finally all claims,
disputes, and potential claims and disputes that Executive may have with
Employer;
NOW,
THEREFORE, in consideration of the mutual promises contained herein and
intending to be legally bound, the Employer and Executive agree as follows:
Section
1. Effective
Date. This Agreement shall become effective and enforceable,
unless sooner revoked pursuant to Section 2, on the eighth day after Executive
signs the Agreement (“Effective Date”). Executive shall deliver the
Agreement bearing his original signature to Employer at the following address no
later than [________] days following the date hereof:
00 Xxxxx
Xxxxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Attn:
General Counsel and Secretary
Section
2. Revocation. Executive
may revoke this Agreement if he delivers written notice of revocation to the
Employer at the address specified in Section 1 before 5:00 p.m. on the eighth
day after signing it. Executive understands that this Agreement shall
be null and void, and he shall not be entitled to any severance payments or
benefits, if he validly revokes the Agreement.
Section
3. Good and Valuable Consideration / No
Further Payment. The severance benefits provided pursuant to
the Employment Agreement are good and valuable consideration for this
Agreement. Executive understands and agrees that, if he signs and
does not revoke this Agreement, except as expressly provided herein, he is not
entitled to receive any additional payment or benefit as a result of his
employment with, or his separation of employment from, Employer.
Section
4. Wages. Executive
acknowledges that he has received payment in full of all wages, including
without limitation any and all salary, overtime, commissions, and bonuses, for
work he performed for or on behalf of Employer on or before
[____________].
Section
5. No Workplace Illness or
Injury. Executive certifies that, except to the extent the
subject of a previously-filed claim for workers compensation benefits, Executive
is not aware of and has experienced any illness or injury in the course or scope
of his employment with Employer.
Section
6. General Release. In
consideration of the severance payments provided pursuant to the Employment
Agreement and intending to be legally bound, Executive hereby irrevocably and
unconditionally releases and forever discharges Employer and any and all of its
past and present parents, subsidiaries, affiliates, related entities, and each
of its and their predecessors, successors, customers, insurers, owners,
directors, officers, employees, attorneys, and other agents (“Released Parties”)
of and from any claims arising from Executive's employment, including but not
limited to any and all rights, obligations, promises, agreements, debts, losses,
controversies, claims, causes of action, liabilities, damages, and expenses,
including without limitation attorneys’ fees and costs, of any nature
whatsoever, whether known or unknown, asserted or unasserted, which he ever had,
now has, or hereafter may have against the Released Parties, or any of them,
that arose at any time before or upon his signing this Agreement, including
without limitation the right to take discovery with respect to any matter,
transaction, or occurrence existing or happening at any time before or upon his
signing this Agreement and any and all claims arising under any oral or written
Employer program, policy or practice, contract, agreement or understanding
(except this Agreement, the Employment Agreement, employee benefit programs
covering the Executive, and Executive’s right to indemnification under any
agreement or otherwise), any common-law principle of any jurisdiction, any
federal, state or local statute or ordinance, with all amendments thereto,
including without limitation the National Labor Relations Act of 1947, the Civil
Rights Acts of 1866, 1871, 1964, and 1991, the Equal Pay Act, the Age
Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the
Bankruptcy Code, the Fair Credit Reporting Act, the Worker Adjustment and
Retraining Notification Act, the Employee Retirement Income Security Act of
1974, the Americans With Disabilities Act of 1990, the Family and Medical Leave
Act of 1993, the Health Insurance Portability and Accountability Act of 1996,
the Xxxxxxxx-Xxxxx Act of 2002, and any other employee-protective law of any
jurisdiction that may apply.
Section
7. Good Faith
Settlement. This Agreement constitutes the good faith
compromise and settlement of all claims and potential claims Executive has
against any one or more of the Released Parties and is not and shall not be
construed as an admission of any wrongful or unlawful act against Executive or
that the conclusion of Executive’s employment was in any way wrongful or
unlawful.
Section
8. Knowing and Voluntary
Agreement. Executive acknowledges that he received this
Agreement on [____________]; that Employer advised him in writing, by this
Section, to consult with an attorney before signing this Agreement; that
Employer is providing him with no less than [___] days to consider this
Agreement before signing it; that Employer is providing him with no less than
seven days to revoke this Agreement after signing it, if he chooses to do so;
that Executive carefully read and fully understands all of the provisions and
effects of this Agreement; that Executive is entering into this Agreement
voluntarily and free of coercion and duress; and that neither Employer nor any
of its agents or attorneys made any representations or promises concerning the
terms or effects of this Agreement.
In
conformity with the Older Workers Benefit Protection Act, Executive further
acknowledges the following:
| (a) | that this Agreement is written in a manner calculated to be understood by him; | |
| (b) | that he has been advised in writing to consult with an attorney prior to executing this Agreement; | |
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(c)
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that
this Agreement represents Executive's knowing and voluntary waiver and
release of any and all claims that he might have, including, but not limited
to any claims arising under the Age Discrimination in Employment Act
("ADEA");
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(d)
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that
he has not waived any claim under the ADEA that may arise after the date
that this Agreement is executed;
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(e)
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that
the consideration that he will receive in exchange for this Agreement is
something of value to which he is not otherwise
entitled;
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(f)
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that
he has been given the option of at least twenty-one (21) days to consider
this Agreement prior to executing it; and
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(g)
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that,
within seven (7) days of signing this Agreement, he may revoke his
Agreement, and the Agreement will not become effective and enforceable
unless and until that seven (7) day period passes without his
revocation.
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Section
9. Governing Law. This
Agreement shall in all respects be interpreted, enforced, and governed under the
laws of the State of New York, without reference to the principles of conflicts
of law otherwise applicable therein.
Section
10. Construction. Each
party to this Agreement had full opportunity to negotiate all terms and language
of this Agreement and this Agreement and all of its terms shall be construed as
if drawn by both parties and not against either as the drafter.
Section
11. Modification. Any modification
or amendment of this Agreement must be made in writing and signed by both
parties. This Agreement sets forth the entire agreement between the
Parties and fully supersedes any and all written or oral contracts, agreements
or understandings between the parties pertaining to the subject matter
hereof.
Section
12. Covenant Not to
Xxx. Executive covenants and agrees that he will not now or at
any time in the future commence, maintain, prosecute or participate in as a
party, or request, encourage or permit to be filed by any other person on
Executive's behalf, or as a member of any alleged class of persons, any action,
suit, proceeding, claim or complaint of any kind against Employer with respect
to any matter which is released under Section 6 above. Executive agrees that he
will not seek or accept any award or settlement from any source or proceeding
with respect to any matter released under Section 6 above and that this
Agreement shall act as a bar to recovery in any such proceeding. For any breach
of this covenant not to xxx, Employer shall be entitled to recover any and all
reasonable attorneys' fees and costs incurred as a result of such breach in
addition to any other damages.
Section
13. Severability. If a
court of competent jurisdiction adjudicates any covenant or obligation under
this Agreement void or unenforceable, then the parties intend that the court
modify such provision only to the extent necessary to render the covenant or
obligation enforceable as modified or, if the covenant or obligation cannot be
so modified, the parties intend that the court sever such covenant or
obligation, and that the remainder of this Agreement, and all remaining
covenants, obligations and provisions as so modified, shall remain valid,
enforceable, and in full force and effect.
BY SIGNING THIS AGREEMENT,
[____________]
ACKNOWLEDGES THAT HE DOES SO VOLUNTARILY AFTER CAREFULLY READING AND FULLY
UNDERSTANDING EACH PROVISION AND ALL OF THE EFFECTS OF THIS AGREEMENT, WHICH
INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS AND RESTRICTS FUTURE LEGAL ACTION
AGAINST PRESTIGE BRANDS HOLDINGS, INC. AND OTHER RELEASED
PARTIES.
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IN
WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have executed this General Release.
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| / | By: | / | |
| [____________] / Date | / Date |
