SENIOR MANAGEMENT AGREEMENT
THIS
SENIOR MANAGEMENT AGREEMENT (this “Agreement”)
is
made as of March
21,
2006,
by and
among Prestige Brands Holdings, Inc., a Delaware corporation (the “Company”),
Prestige Brands, Inc., a Delaware corporation (“Employer”),
and
Xxxxx X. Xxxx (“Executive”).
This
Agreement supercedes the Amended and Restated Senior Management Agreement (as
amended prior to the date hereof, the “Prior
Agreement”),
dated
as of February 4, 2005, by and among Prestige International Holdings LLC, the
Company, Employer and Executive. The purpose of this Agreement is to state
certain agreed terms of employment in connection with Executive’s decision to
accept and assume a new role for Employer.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties effective on March 1, 2006 (the “Effective
Date”)
hereby
agree as follows:
PROVISIONS
RELATING TO EXECUTIVE SECURITIES
1. Acquisition
of Carried
Shares.
(a) As
a
result of the several transactions that were contemplated by the Exchange
Agreement, dated February 4, 2005 (the “Exchange Agreement”), Executive acquired
a
total
of 1,120,602 Common Shares in the Company, of which 1,037,706
Common
Shares
were
subject to vesting and are sometimes referred to herein as “Carried
Shares.”
Executive also acquired an additional 82,896 Common Shares which were not
subject to vesting and are sometimes referred to herein as “Co-Invest
Shares.”
(Both
the Carried Shares and the Co-Invest Shares are sometimes referred to herein
collectively as “Executive
Securities.”)
As
a
result of various transactions that took place subsequent to the date of the
Exchange Agreement, as of February 28, 2006, Executive holds 756,060 Carried
Shares and 60,397 Co-Invest Shares (a total of 816,457 Executive Securities).
On
that date, 474,688 of the Carried Shares were Vested Shares, as defined below
in
Section
2(f).
(b) Executive
acknowledges and agrees that neither the issuance of the Carried Shares to
Executive pursuant to the Exchange Agreement nor any provision contained herein
shall entitle Executive to remain in the employment of the Company, Employer
or
any of their respective Subsidiaries or affect the right of the Company or
Employer to terminate Executive’s employment at any time for any reason, subject
to the remaining terms of this Agreement and any other agreement between
Executive and any such parties.
1
2. Vesting
of Carried Shares.
(a) The
Carried Shares held by Executive as described above in Section
1(a)
shall be
subject to vesting in the manner specified in this Section
2.
(b) The
Carried Shares issued to Executive as described above in Section
1(a)
that
have vested pursuant to the Prior Agreement, or any other instrument or
agreement dated prior to the date of this Agreement, are unaffected by this
Agreement; and, except as otherwise provided in this Section
2,
the
remaining Carried Shares shall become vested in accordance with the following
schedule, if and only if as of each such date provided below, Executive has
been
continuously employed by the Company, Employer or any of their respective
Subsidiaries from the Effective Date through and including such
date:
|
Date
|
Number
of Remaining
Carried
Shares Vested
|
|
March
1, 2006
|
140,686
|
|
March
1, 2007
|
140,686
|
For
the
sake of clarity, and to restate the chart above, immediately prior to the
Effective Date, Executive beneficially owned 281,372 Unvested
Shares, as that term is defined below in Section
2(f).
140,686
of those Unvested Shares shall be deemed to have vested in Executive on March
1,
2006. On March 1, 2006, Executive held 615,374 Vested Shares; 60,397 Co-Invest
Shares; and 140,686 Unvested Shares. The remaining 140,686 Unvested Shares
shall
become wholly vested in Executive on March 1, 2007.
(c) If
Executive ceases to be employed by the Company, Employer and their respective
Subsidiaries on any date other than an anniversary date specified in the
schedule above, the cumulative percentage of Carried Shares to become vested
shall be determined on a straight-line pro rata
basis
according to the number of days elapsed since the Effective Date, as compared
with the date of vesting.
(d) Upon
the
occurrence of a Sale of the Company, all Carried Shares which have not yet
become vested shall become vested at the time of the consummation of the Sale
of
the Company, if, as of such time, Executive has been continuously employed
by
the Company, Employer or any of their respective Subsidiaries from the Effective
Date through and including such date.
(e) Any
provision in this Agreement to the contrary notwithstanding, in the event that
Executive dies or becomes Disabled during the term of this Agreement, all
Unvested Shares shall immediately vest in Executive or his estate, as
appropriate.
2
(f) Carried
Shares that have become vested are referred to herein as “Vested
Shares.”
All
Carried Shares that have not vested are referred to herein as “Unvested
Shares.”
3. Repurchase
Option.
(a) Subject
to the terms and conditions set forth in this Section
3(a)
and
Section
4
below,
the Company will have the right to repurchase (the “Separation
Repurchase Option”)
from
Executive and his transferees (other than the Company) all or any portion of
the
Unvested Shares, in the event Executive ceases to be employed by the Company,
Employer and their respective Subsidiaries for any reason (a “Separation
Repurchase Event”).
The
Company may assign its repurchase rights set forth in this Section
3(a)
to any
Person.
(b) For
any
Separation Repurchase Option, the purchase price for each Unvested Share will
be
the lesser of (i) Executive’s Original Cost of the Carried Common Share(s) or
portion thereof in respect of which such Unvested Share was issued to Executive
and (ii) the Fair Market Value of such Unvested Share as of the date upon which
the Separation Repurchase Notice is delivered.
(c) The
Company (with the approval of the Board) may elect to purchase all or any
portion of the Unvested Shares by delivering written notice (the “Separation
Repurchase Notice”)
to the
holder or holders of such securities within ninety (90) days after the
Separation Repurchase Event. The Separation Repurchase Notice will set forth
the
number of Unvested Shares to be acquired from each holder, the aggregate
consideration to be paid for such shares and the time and place for the closing
of the transaction. The number of Unvested Shares to be repurchased by the
Company shall first be satisfied to the extent possible from the Unvested Shares
held by Executive at the time of delivery of the Separation Repurchase Notice.
If the number of Unvested Shares then held by Executive is less than the total
number of Unvested Shares that the Company has elected to purchase, the Company
shall purchase the remaining Unvested Shares elected to be purchased from the
Permitted Transferee(s) of Unvested Shares under this Agreement, pro rata
according to the number of Unvested Shares held by such Permitted Transferee(s)
at the time of delivery of such Separation Repurchase Notice (determined as
nearly as practicable to the nearest unit). The number of Unvested Shares to
be
repurchased hereunder will be allocated among Executive and the Permitted
Transferee(s) of Unvested Shares (if any) pro rata
according to the number of Unvested Shares to be purchased from such
Person.
(d) The
closing of the purchase of the Unvested Shares pursuant to the Separation
Repurchase Option shall take place on the date designated by the Company in
the
Separation Repurchase Notice, which date shall not be more than 30 days nor
less
than five days after the delivery of such notice. The Company will pay for
the
Unvested Shares to be purchased by it pursuant to the Separation Repurchase
Option by first offsetting amounts outstanding under any
3
bona
fide
debts owed by Executive to the Company and will pay the remainder of the
purchase price by, at its option, (A) a check or wire transfer of funds, (B)
the
issuance of a subordinated promissory note of the Company bearing interest
at a
rate equal to the prime rate (as published in The
Wall Street Journal
from
time to time) and having such maturity as the Company shall determine in good
faith, not to exceed three years, or (C) any combination of clauses (A)
and
(B)
as the
Board may elect in its discretion. The Company will be entitled to receive
customary representations and warranties from the sellers regarding such sale
and to require that all sellers’ signatures be guaranteed.
(e) Notwithstanding
anything to the contrary contained in this Agreement, if the Fair Market Value
of Unvested Shares is finally determined to be an amount at least 10% greater
than the per share repurchase price for such Unvested Shares in the Separation
Repurchase Notice, the Company shall have the right to revoke its exercise
of
the Separation Repurchase Option for all or any portion of the Unvested Shares
elected to be repurchased by it by delivering notice of such revocation in
writing to the holders of Unvested Shares during the thirty-day period beginning
on the date that the Company is given written notice that the Fair Market Value
of a share of Unvested Shares was finally determined to be an amount at least
10% greater than the per share repurchase price for Unvested Shares set forth
in
the Separation Repurchase Notice.
4. Limitations
on Certain Repurchases.
Notwithstanding anything to the contrary contained in this Agreement, all
repurchases of Unvested Shares by the Company pursuant to the Separation
Repurchase Option shall be subject to the ability of the Company to pay the
purchase price from its readily available cash resources (without imposing
any
obligation on the Company to raise financing to fund the repurchases) and also
subject to applicable restrictions contained in the Delaware General Corporation
Law or such other governing corporate law, applicable federal and state
securities laws, and in the Company’s and its Subsidiaries’ debt and equity
financing agreements. If any such restrictions prohibit (A) the repurchase
of
Unvested Shares hereunder which the Company is otherwise entitled to make or
(B)
dividends or other transfers of funds from one or more Subsidiaries to the
Company to enable such repurchases, then the Company may make such repurchases
as soon as it is permitted to make repurchases or receive funds from
Subsidiaries under such restrictions. Furthermore, in the event of a
disagreement in accordance with the terms herein relating to the determination
of the Fair Market Value of any Unvested Shares, the time periods described
herein with respect to purchases of Executive Securities under Section 3 herein
shall be tolled until any such determination has been made in accordance with
the terms provided herein.
PROVISIONS
RELATING TO EMPLOYMENT
5. Employment.
Employer agrees to employ Executive, and Executive accepts such employment,
for
the period beginning as of the date of the Prior Agreement
4
and
ending upon his separation pursuant to Section 5(c) hereof (the “Employment
Period”).
(a) Position
and Duties.
(i) From
the
start of the Employment Period up through and including March 31, 2006,
Executive shall serve as the Chief Executive Officer and Chairman of the Board
of Directors of Employer and shall have the normal duties, responsibilities
and
authorities implied by such positions, including, without limitation, the
responsibilities associated with all aspects of the daily operations of Employer
and the identification, negotiation, completion and integration of any
acquisitions made by the Company, Employer or any of their respective
Subsidiaries, subject to the power of the Board to expand or limit such duties,
responsibilities and authority and to override actions of the Chief Executive
Officer.
(ii) During
the period set forth above in Section
5(a)(i),
Executive shall report to and receive direction from the Board; and Executive
shall devote his best efforts and his full business time and attention to the
business and affairs of the Company, Employer and their
Subsidiaries.
(iii) As
of
April 1, 2006, Executive, while continuing to serve as Chairman of the Board
of
Directors, (subject to his annual election to the Board by the shareholders),
shall cease to be the Chief Executive Officer of the Company and, as of that
date and continuing through the earlier of (a) the date on which Executive
ceases to be employed by the Company, Employer, or any of their respective
subsidiaries, or (b) March 31, 2007, or such other date as the parties hereto
may mutually agree, Executive shall serve as Chairman of the Board of Directors
of the Company (subject to his annual election to the Board by the shareholders
and his subsequent election by the Board as its Chairman), shall be employed
on
a part-time basis, shall report to and receive direction from the Board and
shall have the normal duties, responsibilities and authority implied by such
position. As of April 1, 2006, Executive shall not be expected or required
to
work more than twenty-five (25) days per quarter.
(iv) In
the
event that Executive shall cease to serve as Chairman of the Board, during
the
term of this Agreement, Executive shall nevertheless report to and receive
direction from the Board.
(b) Salary,
Bonus and Benefits.
For the
period from the start of the Employment Period up through and including March
31, 2006, Employer will pay Executive a base salary of $442,000 per annum (the
“Annual
Base Salary”).
For
the period commencing on April 1, 2006, and continuing through the earlier
of
either (a) the date on which Executive ceases to be employed by the Company,
Employer, or any of their respective subsidiaries, or (b) March 31, 2007, or
such other later date as the parties hereto may mutually agree, the Annual
Base
Salary shall be $225,000 per annum. The Annual Base Salary
5
shall
be
in lieu of any other form of Director’s compensation during the term of this
Agreement. At the end of each fiscal year covered by this Agreement, Executive
shall be eligible to earn a bonus pursuant to such subjective and objective
criteria as the Board, in conjunction with the Compensation Committee, shall,
from time to time, adopt; provided,
however,
that
Executive’s target bonus percentage for the fiscal year beginning April 1, 2006
shall be 75% of Annual Base Salary and shall provide for a maximum potential
bonus payment of 150% of Annual Base Salary; and further provided that any
actual bonus award paid to Executive shall be subject to approval by Employer’s
Board, in conjunction with the Compensation Committee thereof. In addition,
during the Employment Period, Executive will be entitled to such other benefits
approved by the Board and made available to the senior management of the
Company, Employer and their Subsidiaries, which shall include coverage to the
extent that such coverage may be provided under the Company’s group medical,
dental, life and disability insurance policies (without extraordinary premium
expense to the Company or to Employer) in light of Executive’s reduced-time
schedule. The Board, in conjunction with the Compensation Committee, shall
review the Annual Base Salary of Executive and may increase or decrease the
Annual Base Salary by such amount as the Board, in conjunction with the
Compensation Committee, in their sole discretion, shall deem appropriate. The
term “Annual Base Salary” as used in this Agreement shall refer to the Annual
Base Salary, as it may, from time to time, be adjusted.
(c) Separation.
The
Employment Period will continue until the earliest of: (i) Executive’s death,
Disability or resignation from employment with the Company, Employer and their
respective Subsidiaries; (ii) the Company, Employer and their respective
Subsidiaries decide to terminate Executive’s employment with or without Cause;
or (iii) March 31, 2007, or such other later date as the parties hereto may
mutually agree pursuant to Section
7(d)
below.
If (A) Executive’s employment is terminated without Cause pursuant to clause
(ii)
above or
(B) Executive resigns from employment with the Company, Employer or any of
their
respective Subsidiaries for Good Reason, then during the period commencing
on
the date of termination of the Employment Period and ending on March 31, 2007
(the “Severance
Period”),
Employer shall pay to Executive, in equal installments on the Employer’s regular
salary payment dates, an aggregate amount equal to (I) his pro-rata Base Salary
from the date of his Separation to March 31, 2007, plus (II) an amount equal
to
the annual bonus, if any, paid or payable to Executive by Employer for the
last
fiscal year ended prior to the date of termination. In addition, if Executive
is
entitled on the date of termination to coverage under the medical and
prescription portions of the Welfare Plans, such coverage shall continue for
Executive and Executive’s covered dependents for a period ending on the first
anniversary of the date of termination at the active employee cost payable
by
Executive with respect to those costs paid by Executive prior to the date of
termination; provided,
that
this coverage will count towards the depletion of any continued health care
coverage rights that Executive and Executive’s dependents may have pursuant to
the
6
Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”);
provided
further,
that Executive’s or Executive’s covered dependents’ rights to continued health
care coverage pursuant to this Section
5(c)
shall
terminate at the time Executive or Executive’s covered dependents become
covered, as described in COBRA, under another group health plan, and shall
also
terminate as of the date Employer ceases to provide coverage to its senior
executives generally under any such Welfare Plan. Notwithstanding the foregoing,
(I) Executive shall not be entitled to receive any payments or benefits pursuant
to this Section
5(c)
unless
Executive has executed and delivered to Employer a general release in form
and
substance satisfactory to Employer and (II) Executive shall be entitled to
receive such payments and benefits only so long as Executive has not breached
the provisions of Sections
6
or
7
hereof.
The release described in the foregoing sentence shall not require Executive
to
release any claims for any vested employee benefits, workers compensation
benefits covered by insurance or self-insurance, claims to indemnification
to
which Executive may be entitled under the Company’s or its Subsidiaries’
certificate(s) of incorporation, by-laws or under any of the Company’s or its
Subsidiaries’ directors or officers insurance policy(ies) or applicable law, or
equity claims to contribution from the Company or its Subsidiaries or any other
Person to which Executive is entitled as a matter of law in respect of any
claim
made against Executive for an alleged act or omission in Executive’s official
capacity and within the scope of Executive’s duties as an officer, director or
employee of the Company or its Subsidiaries. Not later than eighteen (18) months
following the termination of Executive’s employment, the Company and its
Subsidiaries for which the Executive has acted in the capacity of a senior
manager, shall sign and deliver to Executive a release of claims that the
Company or its Subsidiaries has against Executive; provided
that,
such
release shall not release any claims that the Company or its Subsidiaries
commenced prior to the date of the release(s), any claims relating to matters
actively concealed by Executive, any claims to contribution from Executive
to
which the Company or its Subsidiaries are entitled as a matter of law or any
claims arising out of mistaken indemnification by the Company or any of its
Subsidiaries. Except as otherwise provided in this Section
5(c)
or in
the Employer’s employee benefit plans or as otherwise required by applicable
law, Executive shall not be entitled to any other salary, compensation or
benefits after termination of Executive’s employment with Employer.
(d) Extension
of this Agreement. Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall preclude the parties from extending
Executive’s Employment Period beyond March 31, 2007, to such date and/or time as
they shall mutually agree. The parties mutually agree to provide 60 days written
notice of their intention to renew, non-renew, renegotiate or extend this
agreement. In the absence of notice this agreement shall not be
renewed.
7
6. Confidential
Information.
(a) Obligation
to Maintain Confidentiality.
Executive acknowledges that the information, observations and data (including
trade secrets) obtained by him during the course of his performance in the
positions that he has held and shall hold under this Agreement concerning the
business or affairs of the Company, Employer and their respective Subsidiaries
and Affiliates (“Confidential
Information”)
are
the property of the Company, Employer or such Subsidiaries and Affiliates,
including information concerning acquisition opportunities in or reasonably
related to the Company’s and Employer’s business or industry of which Executive
becomes aware during the Employment Period. Therefore, Executive agrees that
he
will not disclose to any unauthorized Person or use for his own account (for
his
commercial advantage or otherwise) any Confidential Information without the
Board’s written consent, unless and to the extent that the Confidential
Information, (i) becomes generally known to and available for use by the public
other than as a result of Executive’s acts or omissions to act; (ii) was known
to Executive prior to Executive’s employment with Employer, the Company or any
of their Subsidiaries and Affiliates; or (iii) is required to be disclosed
pursuant to any applicable law, court order or other governmental decree.
Executive shall deliver to the Company at Separation, or at any other time
the
Company may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and copies thereof)
relating to the Confidential Information, Work Product (as defined below) or
the
business of the Company, Employer and their respective Subsidiaries and
Affiliates (including, without limitation, all acquisition prospects, lists
and
contact information) which he may then possess or have under his
control.
(b) Ownership
of Property.
Executive acknowledges that all discoveries, concepts, ideas, inventions,
innovations, improvements, developments, methods, processes, programs, designs,
analyses, drawings, reports, patent applications, copyrightable work and mask
work (whether or not including any Confidential Information) and all
registrations or applications related thereto, all other proprietary information
and all similar or related information (whether or not patentable) that relate
to the Company’s, Employer’s or any of their respective Subsidiaries’ or
Affiliates’ actual or anticipated business, research and development, or
existing or future products or services and that are conceived, developed,
contributed to, made, or reduced to practice by Executive (either solely or
jointly with others) while employed by the Company, Employer or any of their
respective Subsidiaries or Affiliates (including any of the foregoing that
constitutes any proprietary information or records) (“Work
Product”)
belong
to the Company, Employer or such Subsidiary or Affiliate and Executive hereby
assigns, and agrees to assign, all of the above Work Product to the Company,
Employer or to such Subsidiary or Affiliate. Any copyrightable work prepared
in
whole or in part by Executive in the course of his work for any of the foregoing
entities shall be deemed a “work
8
made
for
hire” under the copyright laws, and the Company, Employer or such Subsidiary or
Affiliate shall own all rights therein. To the extent that any such
copyrightable work is not a “work made for hire,” Executive hereby assigns and
agrees to assign to the Company, Employer or such Subsidiary or Affiliate all
right, title, and interest, including without limitation, copyright in and
to
such copyrightable work. Executive shall promptly disclose such Work Product
and
copyrightable work to the Board and perform all actions reasonably requested
by
the Board (whether during or after the Employment Period) to establish and
confirm the Company’s, Employer’s or such Subsidiary’s or Affiliate’s ownership
(including, without limitation, assignments, consents, powers of attorney,
and
other instruments).
(c) Third
Party Information.
Executive understands that the Company, Employer and their respective
Subsidiaries and Affiliates will receive from third parties confidential or
proprietary information (“Third
Party Information”)
subject to a duty on the Company’s, Employer’s and their respective
Subsidiaries’ and Affiliates’ part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During the
Employment Period and thereafter, and without in any way limiting the provisions
of Section
6(a)
above,
Executive will hold Third Party Information in the strictest confidence and
will
not disclose to anyone (other than personnel and consultants of the Company,
Employer or their respective Subsidiaries and Affiliates who need to know such
information in connection with their work for the Company, Employer or any
of
their respective Subsidiaries and Affiliates) or use, except in connection
with
his work for the Company, Employer or any of their respective Subsidiaries
and
Affiliates, Third Party Information unless expressly authorized by a member
of
the Board (other than himself if Executive is on the Board) in
writing.
(d) Use
of
Information of Prior Employers.
During
the Employment Period and thereafter, Executive will not improperly use or
disclose any confidential information or trade secrets, if any, of any former
employers or any other Person to whom Executive has an obligation of
confidentiality, and will not bring onto the premises of the Company, Employer
or any of their respective Subsidiaries or Affiliates any unpublished documents
or any property belonging to any former employer or any other Person to whom
Executive has an obligation of confidentiality unless consented to in writing
by
the former employer or Person. Executive will use in the performance of his
duties only information which is (i) generally known and used by persons with
training and experience comparable to Executive’s and which is (x) common
knowledge in the industry or (y) otherwise legally in the public domain; (ii)
otherwise provided or developed by the Company, Employer or any of their
respective Subsidiaries or Affiliates; or (iii) in the case of materials,
property or information belonging to any former employer or other Person to
whom
Executive has an obligation of confidentiality, approved for such use in writing
by such former employer or Person.
9
7. Noncompetition
and Nonsolicitation. Executive
acknowledges that in the course of his employment with Employer he will become
familiar with the Company’s, Employer’s and their respective Subsidiaries’ trade
secrets and with other confidential information concerning the Company, Employer
and such Subsidiaries and that his services will be of special, unique and
extraordinary value to the Company, Employer and such Subsidiaries. Therefore,
Executive agrees that:
(a) Noncompetition.
(i) Subject
to Section 7a (iv) below, during the Employment Period, and also during the
period commencing on the date of termination of the Employment Period and ending
on the first anniversary of the date of termination, or until February 6, 2010,
whichever expires last, Executive shall not anywhere in the United States,
directly or indirectly, own, manage, control, participate in, consult with,
render services for, or in any manner engage in any business (i) competing
with
a brand of the Company, Employer, Medtech, Denorex, Spic and Span, Comet,
Prestige, any business acquired by such Persons, or any Subsidiaries of such
Persons, representing 10% or more of the consolidated revenues or EBITDA of
the
Company and its Subsidiaries for the trailing 12 months ending on the last
day
of the last completed calendar month immediately preceding the date of
termination of the Employment Period, or (ii) in which the Company, Employer,
Medtech, Denorex, any business acquired by such Persons, or any Subsidiaries
of
such Persons has conducted discussions or has requested and received information
relating to the acquisition of such business by such Person (x) within one
year
prior to the Separation and (y) during the Severance Period, if any
(collectively, a “Competitor”). Nothing herein shall prohibit Executive from
being a passive owner of not more than 2% of the outstanding stock of any class
of such a corporation that is publicly traded, so long as Executive has no
active participation in the business of such corporation.
(ii) Subject
to Section 7a (iv) below, during the Employment Period, and also during the
period commencing on the date of termination of the Employment Period and ending
on the first anniversary of the date of termination, or until February 6, 2010,
whichever expires last, Executive shall not undertake or accept any management
position, or any position in which he is vested with management responsibilities
(e.g., an officer, a director, a consultant to senior executives, etc.), with
any Competitor; nor shall he offer his services, in any way, to any business
entity that seeks to use Executive’s services to the benefit of any
Competitor.
Subject
to the provisions set forth in Section
7(a)(i)
and
Section
7(a)(ii)
above,
Executive may pursue such personal and professional opportunities as he may
choose during the term of this Agreement and thereafter, which opportunities
may
include, but shall not be limited to, (i) serving on boards of directors of
business entities and non-profits other than those of the Company, Employer,
and
their respective Subsidiairies and Affiliates; (ii) consulting with various
companies other than the Company, Employer, and their respective Subsidiaries
and
10
Affiliates;
organizations other than Company, Employer, and their respective Subsidiaries
and Affiliates; or other similar entities; and (iii) offering his services
to
entities such as investment banks, private equity firms, and the like;
provided,
however,
that
none of
the activities that Executive may undertake pursuant to this Section
7(a)(iii)
shall
impair his obligations to the Company, Employer, and their respective
Subsidiaries and Affiliates or otherwise impede him in the performance of his
duties toward the same; and further provided that
none of
the opportunities that Executive undertakes pursuant to this Section
7(a)(iii)
shall
cause him to consult with, work for, own, manage, control, participate in,
render services for, or in any manner engage in a business that would cause
him
to violate his obligations under Section
7(a)(i)
above.
(iv)
Notwithstanding
the restrictions set forth in this Agreement, in the event of a Sale of the
Company on or before February 5, 2009, all of the provisions of this Section
7(a) shall remain in force for one year following the consummation of the Sale
of the Company.
(b) Nonsolicitation.
During
the Employment Period and also during the period commencing on the date of
termination of the Employment Period and ending on the first anniversary of
the
date of termination, or until February 6, 2010, whichever expires last,
Executive shall not directly or indirectly through another entity (i) induce
or
attempt to induce any employee of the Company, Employer or any of their
respective Subsidiaries to leave the employ of the Company, Employer or any
such
Subsidiary, or in any way interfere with the relationship between the Company,
Employer and any of their respective Subsidiaries and any employee thereof;
(ii)
hire any person who was an employee of the Company, Employer or any of their
respective Subsidiaries within 180 days after such person ceased to be an
employee of the Company, Employer or any of their respective Subsidiaries
(provided,
however,
that
such
restriction shall not apply for a particular employee if the Company has
provided its written consent to such hire, which consent, in the case of any
person who was not a key employee of the Company, Employer or any of their
respective Subsidiaries, shall not be unreasonably withheld); (iii) induce
or
attempt to induce any customer, supplier, licensee or other business relation
of
the Company, Employer or any of their respective Subsidiaries to cease doing
business with the Company, Employer or any such Subsidiary or in any way
interfere with the relationship between any such customer, supplier, licensee
or
business relation and the Company, Employer or any Subsidiary; or (iv) directly
or indirectly acquire or attempt to acquire an interest in any business relating
to the business of the Company, Employer or any of their respective Subsidiaries
and with which the Company, Employer and any of their respective Subsidiaries
has conducted discussions or has requested and received information relating
to
the acquisition of such business by the Company, Employer or any of their
respective Subsidiaries in the two year period immediately preceding a
Separation.
11
(c) Enforcement.
If, at
the time of enforcement of Section
6
or this
Section
7,
a court
of competent jurisdiction holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and
that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive’s
services are unique and because Executive has access to Confidential
Information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event of a breach
or
threatened breach of this Agreement, the Company, Employer, their respective
Subsidiaries or their successors or assigns may, in addition to other rights
and
remedies existing in their favor, apply to any court of competent jurisdiction
for specific performance and/or injunctive or other relief in order to enforce,
or prevent any violations of, the provisions hereof (without posting a bond
or
other security).
(d) Additional
Acknowledgments.
Executive acknowledges that the provisions of this Section
7
are in
consideration of: (i) employment with the Employer, (ii) the issuance of the
Executive Securities by the Company (iii) the acceleration of vesting of the
Executive Securities provided herein and (iv) additional good and valuable
consideration as set forth in this Agreement. In addition, Executive agrees
and
acknowledges that the restrictions contained in Section
6
and this
Section
7
do not
preclude Executive from earning a livelihood, nor do they unreasonably impose
limitations on Executive’s ability to earn a living. In addition, Executive
acknowledges (i) that the business of the Company, Employer and their respective
Subsidiaries will be conducted throughout the United States; (ii)
notwithstanding the state of incorporation or principal office of the Company,
Employer or any of their respective Subsidiaries, or any of their respective
executives or employees (including the Executive), it is expected that the
Company and Employer will have business activities and have valuable business
relationships within its industry throughout the United States; and (iii) as
part of his responsibilities, Executive will be traveling throughout the United
States in furtherance of Employer’s business and its relationships. Executive
agrees and acknowledges that the potential harm to the Company and Employer
of
the non-enforcement of Section
6
and this
Section
7
outweighs any potential harm to Executive of its enforcement by injunction
or
otherwise. Executive acknowledges that he has carefully read this Agreement
and
has given careful consideration to the restraints imposed upon Executive by
this
Agreement, and is in full accord as to their necessity for the reasonable and
proper protection of confidential and proprietary information of the Company,
Employer and their Subsidiaries now existing or to be developed in the future.
Executive expressly acknowledges and agrees that each and every restraint
imposed by this Agreement is reasonable with respect to subject matter, time
period and geographical area.
12
GENERAL
PROVISIONS
8. Definitions.
“Affiliate”
means,
(i) with respect to any Person, any Person that controls, is controlled by
or is
under common control with such Person or an Affiliate of such Person, and (ii)
with respect to any Purchaser, any general or limited partner of such Purchaser,
any employee or owner of any such partner, or any other Person controlling,
controlled by or under common control with such Purchaser.
“Board”
means
the Company’s board of directors (or its equivalent).
“Cause”
means
(i) the intentional or knowing commission of a felony or a crime involving
moral
turpitude or the commission of any other act or omission involving dishonesty
or
fraud with respect to the Company, Employer or any of their respective
Subsidiaries or any of their customers or suppliers, (ii) substantial and
repeated failure to perform duties of the office held by Executive as reasonably
directed by the Board, (iii) gross negligence or willful misconduct with respect
to the Company, Employer or any of their respective Subsidiaries, (iv) conduct
tending to bring the Company, Employer or any of their respective Subsidiaries
into substantial public disgrace or disrepute or (v) any breach by Executive
of
Sections 6
or
7
of this
Agreement. Notwithstanding the foregoing, if it is alleged or determined that
actions taken by Executive caused the Company, Employer or any of their
respective Subsidiaries to engage in illegal activities or operations, the
taking of such actions by Executive shall not constitute “Cause” hereunder if
Executive had a reasonable and good faith belief that such actions were not
in
violation of any law, rule, regulation or court order, were in the best
interests of the Company, Employer and their respective Subsidiaries and were
taken in the ordinary course of business.
“Comet”
means
The Comet Products Corporation, a Delaware corporation.
“Credit
Agreement”
means
the Credit Agreement, dated as of April 6, 2004, among Employer, Prestige Brands
International, LLC, a Delaware limited liability company, the lenders and
issuers party thereto, Citicorp North America, Inc., as administrative agent
and
Tranche C Agent (as defined therein), Bank of America, N.A., as syndication
agent for the lenders and issuers, Xxxxxxx Xxxxx Capital, a division of Xxxxxxx
Xxxxx Business Financial Services Inc., as documentation agent for the lenders
and issuers, and the other parties named therein, as the same may be amended,
supplemented or otherwise modified from time to time, at any renewal, extension,
refunding, restructuring, replacement or refinancing thereof (whether with
the
original agent or lenders or another agent or agents or other lenders and
whether provided under the original Credit Agreement or any other credit
agreement).
“Denorex”
means
The Denorex Company, a Delaware corporation.
“Disability”
and
“Disabled” both mean the permanent disability of Executive caused by any
physical or mental injury, illness or incapacity as a result of
which
13
Executive
is unable to effectively perform the essential functions of Executive’s duties
as determined by the Board in good faith.
“EBITDA”
means
“Adjusted EBITDA” as such term is defined in the Credit Agreement.
"Executive
Securities" means all Class B Preferred Units
of
Prestige Preferred Holdings, LLC acquired
by Executive pursuant to the Senior Management Agreement dated February 6,
2004,
and Common Shares acquired by Executive pursuant to the Exchange Agreement.
Executive Securities will continue to be Executive Securities in the hands
of
any holder other than Executive (except for the Company and transferees in
a
Public Sale, which transferees shall not be subject to the provisions of this
Agreement with respect to such securities), and except as otherwise provided
herein, each such other holder of Executive Securities will succeed to all
rights and obligations attributable to Executive as a holder of Executive
Securities hereunder. Executive Securities (or, individually, any particular
type of equity security included therein) will also include equity securities
of
the Company issued with respect to Executive Securities (or, individually,
any
particular type of equity security included therein) by way of a stock split,
stock dividend, conversion, or other recapitalization. For the avoidance of
doubt, all Unvested Shares shall remain Unvested Shares after a Transfer
thereof, unless such Transfer is to the Company or a transferee in a Public
Sale.
“Fair
Market Value”
of
each
share of Executive Securities means the average of the closing prices of the
sales of such Executive Securities on all securities exchanges on which such
Executive Securities may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest
asked
prices on all such exchanges at the end of such day, or, if on any day such
Executive Securities are not so listed, the average of the representative bid
and asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time,
or,
if on any day such Executive Securities are not quoted in the NASDAQ System,
the
average of the highest bid and lowest asked prices on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau
Incorporated, or any similar successor organization, in each such case averaged
over a period of 21 days consisting of the day as of which the Fair Market
Value
is being determined and the 20 consecutive business days prior to such day.
If
at any time such Executive Securities are not listed on any securities exchange
or quoted in the NASDAQ System or the over-the-counter market, the Fair Market
Value will be the fair value of such Executive Securities as determined in
good
faith by the Board. If Executive reasonably disagrees with such determination,
Executive shall deliver to the Board a written notice of objection (an
“Objection”)
within
thirty (30) days after delivery of the Separation Repurchase Notice. Upon
receipt of Executive’s Objection, the Board and Executive will negotiate in good
faith to agree on such Fair Market Value. If such agreement is not reached
within 20 days after the delivery of the Objection, Fair Market Value shall
be
determined by an appraiser jointly selected by the Board and Executive, which
appraiser shall submit to the Board and Executive a report within 30 days of
its
engagement setting forth such determination. If the parties are unable to agree
on an appraiser within 25 days after delivery of the Objection, within seven
days, each party shall submit the names of four nationally recognized firms
that
are
14
engaged
in the business of valuing non-public securities, and each party shall be
entitled to strike two names from the other party’s list of firms, and the
appraiser shall be selected by lot from the remaining four investment banking
firms. The expenses of such appraiser shall be borne equally by Executive and
the Company. The determination of such appraiser as to Fair Market Value shall
be final and binding upon all parties.
“Family
Group”
means
a
Person’s spouse and descendants (whether natural or adopted), and any trust,
family limited partnership, limited liability company or other entity wholly
owned, directly or indirectly, by such Person or such Person’s spouse and/or
descendants that is and remains solely for the benefit of such Person and/or
such Person’s spouse and/or descendants and any retirement plan for such
Person.
“Good
Reason”
means
(i) an involuntary and material diminution in Executive’s position as Chairman
of the Company during the Term of this Agreement, (ii) the permanent relocation
or transfer of Employer’s principal office outside a 30 mile radius from
Irvington, New York or (iii) any failure of Employer to comply with the Annual
Base Salary and bonus provisions of Section
6(b)
hereof.
Failure of the shareholders of the Company to elect Executive to the Board
of
Directors shall not: (w) consititute Good Reason, (x) constitute Cause for
termination as that term is defined in this Section
8,
(y) be
deemed a Separation as that term is defined in this Section
8,
or (z)
in any way affect Executive’s rights under Section
2
of this
Agreement.
“Medtech”
means
Medtech Products, Inc., a Delaware corporation.
“Original
Cost”
means,
with respect to each Carried Common Unit acquired pursuant to the Prior
Agreement, $0.10 (each as proportionately adjusted for all subsequent stock
splits, stock dividends and other recapitalizations).
“Person”
means
an individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, investment fund, any other business entity and a governmental
entity or any department, agency or political subdivision thereof.
“Prestige”
means
Prestige Brands Holdings, Inc., a Delaware corporation.
“Public
Offering”
means
the sale in an underwritten public offering registered under the Securities
Act
of equity securities of the Company or a corporate successor to the
Company.
“Public
Sale”
means
(i) any sale pursuant to a registered public offering under the Securities
Act
or a relevant exemption from registration thereunder, or (ii) any sale to the
public pursuant to Rule 144 promulgated under the Securities Act effected
through a broker, dealer or market maker (other than pursuant to Rule 144(k)
prior to a Public Offering).
“Purchaser”
has
the
meaning set forth in the Exchange Agreement.
15
"Registration
Agreement" means the Registration Rights
Agreement, dated as of February 6, 2004, by and among the Company and
certain of its securityholders, as amended from time to time pursuant to its
terms.
“Sale
of the Company”
means
any transaction or series of transactions pursuant to which any Person or group
of related Persons other than the Equity Purchasers or their Affiliates in
the
aggregate acquire(s) (i) equity securities of the Company possessing the voting
power (other than voting rights accruing only in the event of a default, breach
or event of noncompliance) to elect a majority of the Board (whether by merger,
consolidation, reorganization, combination, sale or transfer of the Company’s
equity, securityholder or voting agreement, proxy, power of attorney or
otherwise) or (ii) all or substantially all of the Company’s assets determined
on a consolidated basis; provided
that a
Public Offering shall not constitute a Sale of the Company.
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time.
“Separation”
means
the cessation of employment of Executive with the Company, Employer and their
respective Subsidiaries for any reason.
“Spic
and Span”
means
The Spic and Span Company, a Delaware corporation.
“Subsidiary”
means,
with respect to any Person, any corporation, limited liability company,
partnership, association, or business entity of which (i) if a corporation,
a
majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers, or trustees thereof is at the time owned or controlled, directly
or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation),
a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or
more
Subsidiaries of that Person or a combination thereof. For purposes hereof,
a
Person or Persons shall be deemed to have a majority ownership interest in
a
limited liability company, partnership, association, or other business entity
(other than a corporation) if such Person or Persons shall be allocated a
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director
or
general partner of such limited liability company, partnership, association,
or
other business entity. For purposes hereof, references to a “Subsidiary”
of
any
Person shall be given effect only at such times that such Person has one or
more
Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a
Subsidiary of the Company.
“TCW/Crescent
Lenders”
means
collectively, TCW/Crescent Mezzanine Partners III, L.P., a Delaware limited
partnership, TCW/Crescent Mezzanine Trust III, a Delaware business trust, and
TCW/Crescent Mezzanine Partners III Netherlands, L.P., a Delaware limited
partnership, any of their Affiliates or any investment fund for whom Trust
Company of the West or any Affiliate of Trust Company of the West acts as an
account
16
manager.
“TCW/Crescent
Purchasers”
means
collectively, TCW/Crescent Mezzanine Partners III, L.P., a Delaware limited
partnership, TCW/Crescent Mezzanine Trust III, a Delaware business trust, and
TCW/Crescent Mezzanine Partners III Netherlands, L.P., a Delaware limited
partnership, any of their Affiliates or any investment fund for whom Trust
Company of the West or any Affiliate of Trust Company of the West acts as an
account manager.
“Transfer”
means
to sell, transfer, assign, pledge or otherwise dispose of (whether with or
without consideration and whether voluntarily or involuntarily or by operation
of law).
“Welfare
Plans”
mean
the welfare benefit plans, practices, policies and programs provided by Employer
to the extent applicable generally to other senior executives of the
Company.
9. Notices»
.
Any
notice provided for in this Agreement must be in writing and must be either
personally delivered, mailed by first class mail (postage prepaid and return
receipt requested) or sent by reputable overnight courier service (charges
prepaid) to the recipient at the address below indicated:
If
to
Employer:
Prestige
Brands, Inc.
00
Xxxxx
Xxxxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Attention:
Chief Executive Officer
with
copies to:
Xxxxxxx
X. Xxxxx, Esq.
General
Counsel
Prestige
Brands, Inc.
00
Xxxxx
Xxxxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
17
If
to
the Company:
00
Xxxxx
Xxxxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
Attention:
Chief Executive Officer
with
copies to:
Xxxxxxx
X. Xxxxx, Esq.
General
Counsel
Prestige
International Holdings, LLC
00
Xxxxx
Xxxxxxxx
Xxxxxxxxx,
Xxx Xxxx 00000
If
to
Executive:
Xxxxx
X.
Xxxx
X.X.
Xxx
00
Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
with
a
copy to:
Ford
Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
Xxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Xxxxx X. Xxxxxx
or
such
other address or to the attention of such other Person as the recipient party
shall have specified by prior written notice to the sending party. Any notice
under this Agreement will be deemed to have been given when so delivered or
sent
or, if mailed, five days after deposit in the U.S. mail.
10. General
Provisions.
(a) Transfers
in Violation of Agreement.
Any
Transfer or attempted Transfer of any Executive Securities in violation of
any
provision of this Agreement shall be void, and the Company shall not record
such
Transfer on its books or treat any purported transferee of such Executive
Securities as the owner of such equity for any purpose.
18
(b) Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(c) Complete
Agreement.
This
Agreement, those documents expressly referred to herein and other documents
of
even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way, including, but not limited to, the
Employment Letter Agreement, dated February 1, 2001, between Executive and
The
Spic and Span Company; the Senior Management Agreement by and among Holdings
LLC, Employer, and Executive, dated February 6, 2004; the Amended and Restated
Senior Management Agreement among Holdings LLC, the Company, Employer, and
Executive, dated February 4, 2005; and the Amended and Restated Executive
Securities Purchase Agreement among Holdings LLC, the Company, Employer, and
Executive, dated February 4, 2005. Notwithstanding the foregoing, the parties
hereto acknowledge the existence of a certain letter agreement between the
Executive and GTCR Fund VIII and its Affiliates. Nothing contained or omitted
herein is intended to limit or modify the obligations of the Executive under
said letter agreement.
(d) No
Strict Construction.
The
language used in this Agreement shall be deemed to be the language chosen by
the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
(e) Counterparts.
This
Agreement may be executed and delivered in separate counterparts (including
by
means of facsimile), each of which is deemed to be an original and all of which
taken together constitute one and the same agreement.
(f) Successors
and Assigns.
Except
as otherwise provided herein, this Agreement shall bind and inure to the benefit
of and be enforceable by Executive, the Company, the Employer, the Equity
Purchasers and their respective successors and assigns (including subsequent
holders of Executive Securities); provided that the rights and obligations
of
Executive under this Agreement shall not be assignable except in connection
with
a permitted transfer of Executive Securities hereunder.
(g) Choice
of Law.
The law
of the State of Delaware will govern all questions concerning the relative
rights of the Company, Employer and its
19
securityholders.
All other questions concerning the construction, validity and interpretation
of
this Agreement and the exhibits hereto will be governed by and construed in
accordance with the internal laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the
State of Delaware or any other jurisdiction) that would cause the application
of
the laws of any jurisdiction other than the State of Delaware.
(h) MUTUAL
WAIVER OF JURY TRIAL.
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH
APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES),
THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT
TO
RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR
INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE
RELATIONSHIP ESTABLISHED AMONG THE PARTIES HEREUNDER.
(i) Executive’s
Cooperation.
During
the Employment Period and thereafter, Executive shall cooperate with the
Company, Employer and their respective Subsidiaries and Affiliates in any
disputes with third parties, internal investigation or administrative,
regulatory or judicial proceeding as reasonably requested by the Company
(including, without limitation, Executive being available to the Company upon
reasonable notice for interviews and factual investigations, appearing at the
Company’s request to give testimony without requiring service of a subpoena or
other legal process, volunteering to the Company all pertinent information
and
turning over to the Company all relevant documents which are or may come into
Executive’s possession, all at times and on schedules that are reasonably
consistent with Executive’s other permitted activities and commitments). In the
event the Company requires Executive’s cooperation in accordance with this
paragraph after the Employment Period, the Company shall reimburse Executive
for
reasonable travel expenses (including lodging and meals, upon submission of
receipts) and compensate Executive for his time at a rate that is mutually
agreeable to Executive and the Company.
(j) Remedies.
Each of
the parties to this Agreement (and the Equity Purchasers as third-party
beneficiaries) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorney’s fees) caused by
any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and
20
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 sole discretion
apply
to any court of law or equity of competent jurisdiction (without posting any
bond or deposit) for specific performance and/or other injunctive relief in
order to enforce or prevent any violations of the provisions of this
Agreement.
(k) Amendment
and Waiver.
The
provisions of this Agreement may be amended and waived only with the prior
written consent of the Company, Employer, Executive, and the Compensation
Committee of Employer’s Board of Directors.
(l) Insurance.
The
Company, at its discretion, may apply for and procure in its own name and for
its own benefit life and/or disability insurance on Executive in any amount
or
amounts considered available. Executive agrees to cooperate in any medical
or
other examination, supply any information, and to execute and deliver any
applications or other instruments in writing as may be reasonably necessary
to
obtain and constitute such insurance. Executive hereby represents that he has
no
reason to believe that his life is not insurable at rates now prevailing for
healthy men of his age.
(m) Business
Days.
If any
time period for giving notice or taking action hereunder expires on a day which
is a Saturday, Sunday or holiday in the state in which the Company’s chief
executive office is located, the time period shall be automatically extended
to
the business day immediately following such Saturday, Sunday or
holiday.
(n) Indemnification
and Reimbursement of Payments on Behalf of Executive.
The
Company and its Subsidiaries shall be entitled to deduct or withhold from any
amounts owing from the Company or any of its Subsidiaries to Executive any
federal, state, local or foreign withholding taxes, excise taxes, or employment
taxes (“Taxes”)
imposed with respect to Executive’s compensation or other payments from the
Company or any of its Subsidiaries or Executive’s ownership interest in the
Company, including, without limitation, wages, bonuses, dividends, the receipt
or exercise of equity options and/or the receipt or vesting of restricted
equity. In the event the Company or any of its Subsidiaries does not make such
deductions or withholdings, Executive shall indemnify the Company and its
Subsidiaries for any amounts paid with respect to any such Taxes, together
with
any interest, penalties and related expenses thereto.
(o) Reasonable
Expenses.
Employer agrees to pay the reasonable fees and expenses of Executive’s counsel
arising in connection with the negotiation and execution of this Agreement
and
the consummation of the transactions contemplated by this
Agreement.
21
(p) Termination.
This
Agreement (except for the provisions of Sections
5(a)
and
(b))
shall
survive a Separation and shall remain in full force and effect after such
Separation.
(q) Adjustments
of Numbers.
All
numbers set forth herein that refer to share prices or amounts will be
appropriately adjusted to reflect share splits, share dividends, combinations
of
shares and other recapitalizations affecting the subject class of
equity.
(r) Deemed
Transfer of Executive Securities.
If the
Company (and/or any other Person acquiring securities) shall make available,
at
the time and place and in the amount and form provided in this Agreement, the
consideration for the Executive Securities to be repurchased in accordance
with
the provisions of this Agreement, then from and after such time, the Person
from
whom such shares are to be repurchased shall no longer have any rights as a
holder of such shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company (and/or any other Person acquiring securities) shall be deemed the
owner
and holder of such shares, whether or not the certificates therefor have been
delivered as required by this Agreement.
(s) No
Pledge or Security Interest.
The
purpose of the Company’s retention of Executive’s certificates is solely to
facilitate the repurchase provisions set forth in Section
3
and does
not constitute a pledge by Executive of, or the granting of a security interest
in, the underlying equity.
(t) Rights
Granted to GTCR Fund VIII and its Affiliates.
Any
rights granted to GTCR Fund VIII, GTCR Fund VIII/B, GTCR Co-Invest and their
Affiliates hereunder may also be exercised (in whole or in part) by their
designees.
*
* * *
*
22
IN
WITNESS WHEREOF,
the parties hereto have executed this Amended
and Restated Senior
Management Agreement on the date first written above.
By: /s/
Xxxxxxx Jolly________________
Name:
Xxxxxxx Jolly________________
Title:
Secretary____________________
PRESTIGE
BRANDS, INC.
By:
/s/ Xxxxxxx Jolly________________
Name:
Xxxxxxx Jolly________________
Title:
Secretary____________________
/s/ Xxxxx X. Mann__________________
XXXXX
X.
XXXX
23
