SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
This
Separation
Agreement and General Release (referred to as "Agreement") entered into this
____ day of ____________, 2007, by and between Xxxxxx X. Xxxxx (referred to
as
"Xx. Xxxxx") and Energizer Holdings, Inc. (referred to as "ENERGIZER" and as
defined at Paragraph 11):
WITNESSETH:
WHEREAS,
Xx. Xxxxx
is an employee of ENERGIZER serving in a key leadership and strategic position
as Chief Executive Officer and President, Xxxxxx-Xxxxxxxxx Sword, and he has
recently indicated his interest in retiring; and
WHEREAS,
Xx. Xxxxx
and ENERGIZER are amicably concluding their employment relationship;
and
WHEREAS,
ENERGIZER
desires to receive from Xx. Xxxxx a general release from any employment or
other
claims which may exist, as well as covenants not to engage (either directly
or
indirectly) in competition with, or to solicit any employee, client or account
of, ENERGIZER, as well as a covenant not to disclose confidential information
obtained by Xx. Xxxxx in the course of his employment with ENERGIZER or its
Xxxxxx-Xxxxxxxxx Sword division; and
WHEREAS,
ENERGIZER
and Xx. Xxxxx desire to confirm the terms and conditions of Xx. Xxxxx’x release
and other covenants, agreements and understandings; and
WHEREAS,
ENERGIZER’s
Board of
Directors has approved the terms of this Agreement;
NOW,
THEREFORE, in
consideration of the foregoing and the mutual promises and considerations
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Termination
of
Employment.
Xx. Xxxxx and
ENERGIZER agree that at the conclusion of business on March 31, 2007 Xx. Xxxxx
will resign from employment as President and Chief Executive Officer,
Xxxxxx-Xxxxxxxxx Sword with ENERGIZER and will be removed from ENERGIZER’s
payroll on that date. Xx. Xxxxx will continue to satisfactorily perform his
duties through the end of business on March 31, 2007. Xx. Xxxxx’x termination
will be deemed to be a voluntary termination of employment following attainment
of age 55 for all purposes of ENERGIZER’s benefit plans and
programs.
2. Consideration.
In full
consideration of Xx. Xxxxx’x general release of claims which may exist against
ENERGIZER, and his covenants of non-competition, non-solicitation and
nondisclosure set forth herein, ENERGIZER agrees to pay Xx. Xxxxx, upon his
retirement from employment, the sum of Five Hundred Thousand Dollars ($500,000).
As additional consideration, ENERGIZER agrees to accelerate the vesting of
2,500
unvested restricted stock equivalents awarded to Xx. Xxxxx in January of 2005,
which are currently scheduled to vest in 2008 and 2009, so that vesting shall
occur upon his retirement, and at that time, 2,500 shares of ENERGIZER’s common
stock shall be issued to him.
3. No
Impact on
Benefit Entitlements.
The promises and
payment contained in Paragraph 2, above, are in addition to any wages or other
benefits to which Xx. Xxxxx already is entitled, or will become entitled, in
the
regular course of his employment with ENERGIZER, pursuant to, and in accordance
with, the terms of any of ENERGIZER’s benefit plans or programs, including, but
not limited to, the benefit plans and programs set forth in paragraph 4 of
this
Agreement. Xx. Xxxxx understands and acknowledges that, under the terms of
ENERGIZER’s Annual and Long-Term Bonus Program, upon his retirement prior to the
end of the current fiscal year, he will not be entitled to any pro-rated portion
of the annual or long-term bonus opportunity approved by the Nominating and
Executive Compensation Committee (the “Committee”) of ENERGIZER’s Board of
Directors in October of 2006, or of the contingent bonus opportunity approved
by
the Committee in October of 2005, payment of which is contingent upon fiscal
year 2007 results. Xx. Xxxxx also understands and acknowledges that, pursuant
to
the terms of the Performance Restricted Stock Equivalent Awards granted to
him
by the Committee in October of 2005 and October of 2006, upon his retirement
prior to the vesting of those awards, both of those awards will be forfeited,
as
will his right to compensation under his Change of Control Employment Agreement.
It is also acknowledged and agreed that the monetary payment described in
Paragraph 2 is not to be deemed compensation for purposes of the calculation
of
Xx. Xxxxx’x pension benefits under any qualified or non-qualified retirement
plan of ENERGIZER.
4. Xx.
Xxxxx’x
General Release.
Xx. Xxxxx
agrees:
a. To
release, settle
and forever discharge ENERGIZER, including its agents and employees, from any
and all claims, causes of action, rights, demands, debts, or damages of whatever
nature, whether or not Xx. Xxxxx currently knows of them, which might have
arisen from Xx. Xxxxx’x employment with and termination from ENERGIZER and which
may be brought by Xx. Xxxxx or another person or agency on Xx. Xxxxx’x behalf.
This includes, but is not limited to, all claims of discrimination which Xx.
Xxxxx may have arising out of any violation of any local, state or federal
law,
regulation or executive order, including all claims under the Age Discrimination
in Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Americans with Disabilities Act, the Family Medical Leave
Act,
the Occupational Safety and Health Act, the Fair Labor Standards Act, the
Rehabilitation Act, the Employee Retirement Income Security Act, the
Consolidated Omnibus Budget Reconciliation Act, as well as any claim, right
or
cause of action under the Missouri Revised Statutes including, but not limited
to, Workers’ Compensation Retaliation § 287.780, the Service Letter Statute §
290.140, the Missouri Human Rights Act § 213.010 et
seq.,
actions at
common law, in contract or tort, all claims for last wages, seniority,
reinstatement, attorneys’ fees, costs, and actual compensatory and punitive
damages; notwithstanding the foregoing, however, the provisions of this release
shall not affect Xx. Xxxxx’x right to raise any claims based on any Social
Security, Workers' Compensation, or unemployment compensation laws, or claim
for
benefits under any employee pension or welfare benefit plan or program of
ENERGIZER, now or in the future, including, but not limited to, the Energizer
Holdings, Inc. Retirement Plan, the Energizer Holdings, Inc. Supplemental
Executive Retirement Plan, the Energizer Holdings, Inc. Deferred Compensation
Plan, the Energizer Holdings, Inc. Savings Investment Plan, the Energizer
Holdings, Inc. Executive Savings Investment Plan, the Energizer Holdings, Inc.
Executive Life and Health Plans, retiree benefits under the Energizer Holdings,
Inc. Medical Plan, and any grant of options or restricted stock equivalents
pursuant to the Energizer Holdings, Inc. 2000 Incentive Stock Plan.
b. Xx.
Xxxxx
specifically agrees that he has not been treated adversely on account of age,
race, gender or other legally protected classification or otherwise retaliated
against for any statement, report or claim made by him, if any. Xx. Xxxxx
acknowledges that ENERGIZER relied on the representations and promises in this
Agreement in agreeing to pay Xx. Xxxxx the benefits described in this Agreement.
c. Xx.
Xxxxx agrees to
accept the monetary payment set forth in Paragraph 2 above, in consideration
for
the settlement, waiver and release and discharge of any and all claims or
actions against ENERGIZER arising under any federal, state, or local statute,
law, or regulation pertaining to employment discrimination on the basis of
sex,
race, color, religion, creed, national origin, age, mental or physical
disability, marital status, veteran’s status, or any other reason established by
law, including any claim of actual or constructive wrongful discharge, as well
as for his other covenants set forth below.
5. Xx.
Xxxxx’x
Covenants Not to Compete, Solicit or Disclose.
Xx. Xxxxx
acknowledges that the services which he rendered to ENERGIZER are of a special
character which have a unique value to ENERGIZER, the loss of which cannot
be
adequately compensated by damages in an action of law. Xx. Xxxxx agrees that
by
virtue of his employment, he has gained a special and unique understanding
of
ENERGIZER’s business in the formulation, processing, manufacturing,
distribution, sale, and marketing of ENERGIZER’s wet-shave products and battery
and battery related products, as well as other products formulated, designed,
processed, manufactured, distributed, sold, or marketed by ENERGIZER during
the
tenure of Xx. Xxxxx’x employment. Xx. Xxxxx at all times recognizes and respects
the advantageous business relationship which exists between ENERGIZER and its
employees and its present and potential customers, clients and suppliers who
have been made aware of the products and services of ENERGIZER. Xx. Xxxxx makes
the covenants contained in this Agreement in view of: the unique value of the
services of Xx. Xxxxx for which ENERGIZER has employed Xx. Xxxxx; the
Confidential Information obtained by or disclosed to Xx. Xxxxx as an employee
of
ENERGIZER; and ENERGIZER’s agreement to provide Xx. Xxxxx with consideration as
provided in this Agreement.
Specifically:
a. Xx.
Xxxxx agrees
that for a period of three (3) years after termination of Xx. Xxxxx’x employment
-- i.e.,
from April 1, 2007
through April 1, 2010 -- (“the Non-Compete Period”), Xx. Xxxxx will not compete
against ENERGIZER in ENERGIZER Business.
(i) For
purposes of this
Agreement, “ENERGIZER Business” shall mean any of the following business
activities: any aspects of formulating, design, manufacturing, marketing,
distributing, consulting with regard to, and/or operating a facility for the
manufacturing, processing, marketing, or distribution of, wet-shave products,
including razors, blades, shaving systems, shaving cream and other accessories,
batteries, lighting products, rechargeable batteries, and related battery and
lighting products. “ENERGIZER Business” includes products and/or methods that
presently are used, were used, or are under development or consideration,
whether or not completed, for use by ENERGIZER as of the date Xx. Xxxxx’x
employment terminates.
(ii)
For purposes of this Agreement, to “compete” means to accept or begin employment
with, advise, finance, own (partially or in whole), consult with, or accept
an
assignment through an employer with any third party world wide in a position
involving or relating to an ENERGIZER Business.
(iii)
This Agreement does not preclude Xx. Xxxxx from buying or selling shares of
stock in any company that is publicly listed and traded in any stock exchange
or
over-the-counter market; provided, however, that Xx. Xxxxx may not use
Confidential Information to engage in, or induce others to engage in, xxxxxxx
xxxxxxx as prohibited by federal and state securities laws.
(iv)
Xx. Xxxxx acknowledges and agrees that the foregoing restrictions are reasonable
and necessary for the protection of the goodwill and business of ENERGIZER
and
are enforceable in view of, among other things; (i) the narrow range of
activities prohibited, (ii) the national and international markets in which
ENERGIZER operates, (iii) the Confidential Information to which Xx. Xxxxx had
access during his employment, and (iv) Xx. Xxxxx’x background and qualifications
are such that the restrictions will not impose an undue hardship on Xx. Xxxxx
nor unreasonably interfere with Xx. Xxxxx’x ability to earn a livelihood. The
parties hereby acknowledge that the nature of the business conducted by
ENERGIZER and the position of ENERGIZER in the battery and wet-shave industry
mandate the foregoing non-competition restriction for a substantial duration
in
order to protect and preserve the competitive advantage and goodwill of
ENERGIZER.
b. For
the duration of
the Non-Compete Period, Xx. Xxxxx shall not (i) induce or attempt to induce
any
employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere
with the relationship between ENERGIZER and its employees (other than
non-supervisory or non-managerial personnel who are employed in a clerical
or
maintenance position) or (ii) induce or attempt to induce any customer,
supplier, distributor, broker, or other business relation of ENERGIZER to cease
doing business with ENERGIZER, or in any way interfere with the relationship
between any customer, supplier, distributor, broker or other business relation
and ENERGIZER.
c. Xx.
Xxxxx
acknowledges that the information, observations and data relating to the
formulation, technology or design, intellectual property, processing,
manufacturing, distribution, sale and marketing of ENERGIZER's wet-shave
products, including razors, blades, shaving systems and shaving cream and other
accessories, batteries, and battery related products obtained by Xx. Xxxxx
during the course of Xx. Xxxxx’x employment with ENERGIZER (the "Confidential
Information") are confidential and the exclusive property of ENERGIZER. Xx.
Xxxxx agrees that he will not disclose to any unauthorized persons or use for
Xx. Xxxxx’x own account or for the benefit of any third party (other than
ENERGIZER) any of such Confidential Information without ENERGIZER’s prior
written consent, unless and to the extent that such Confidential Information
becomes generally known to, and available for use by, the public other than
as a
result of Xx. Xxxxx’x acts or failure to act.
For
purposes of
this Agreement, “Confidential Information” means all information with respect to
the conduct or details of the business and operations of ENERGIZER, including
but not limited to current and planned information systems; the names, addresses
or particular desires or needs of its customers; the bounds of its markets;
the
prices charged for its services or products; its market share; marketing
strategies and promotional efforts in any market; product development,
manufacturing processes, and research and development projects; formulas,
inventions and compilations of information, records or specifications; future
product or market developments, financial information, information regarding
suppliers, and costs of raw materials and other supplies; financing programs,
overhead distribution and other expenses; conversion costs; contemplated,
pending, or completed acquisitions; or personnel. Xx. Xxxxx understands and
agrees that such “Confidential Information” is important, material and
confidential, and that disclosure would gravely affect the successful conduct
of
ENERGIZER’s businesses. The obligation to protect Confidential Information is
on-going and does not expire upon the termination of the parties’ contractual
relationship.
d.
Xx.
Xxxxx
acknowledges that irreparable injury will be caused to ENERGIZER by any breach
or threatened breach of any of the provisions of paragraph 5 (a) through (c)
and
Xx. Xxxxx therefore agrees that, in the event of any breach or threatened
breach, ENERGIZER, in addition to all of the rights and remedies at law or
in
equity as may exist in its favor, shall have the right, in a court of law or
equity having jurisdiction, to enforce the specific performance of the foregoing
provisions. In the event of an action in a court of law or equity to enforce
any
provision of this Agreement, Xx. Xxxxx shall be responsible for all expenses
incurred by ENERGIZER in connection therewith, including, but not limited to,
ENERGIZER’s reasonable attorney’s fees and costs.
e.
Xx.
Xxxxx has
carefully read and considered the provisions of paragraph 5 (a) through (c)
hereof, and having done so, agrees that the restrictions set forth in such
paragraphs (including, but not limited to, the time period of the restriction
set forth in paragraph 5 (a) hereof) are fair and reasonable and required for
the protection of the interests of ENERGIZER, its officers, directors, and
other
employees.
f.
The
failure by
ENERGIZER to enforce at any time any of the provisions of this paragraph 5
or to
require at any time performance by Xx. Xxxxx of any provisions hereof, shall
in
no way be construed to be a release of Xx. Xxxxx or waiver of such provisions
or
to affect the validity of this Agreement or any part hereof, or the right of
ENERGIZER thereafter to enforce every such provision in accordance with the
terms of this Agreement.
g.
Nothing
contained
in this paragraph 5 shall be construed to require the commission of any act
contrary to law or to be contrary to law, and whenever there is any conflict
between any provision of this Agreement and any present or future statute,
law,
government regulation or ordinance contrary to which the parties have no legal
right to contract, the latter shall prevail, but in such event the provisions
of
this Agreement affected shall be curtailed and restricted only to the extent
necessary to bring them within legal requirements.
h.
If
any provision of
the covenants and agreements set forth in this paragraph 5 shall be held invalid
or unenforceable because of the scope of the territory or the actions thereby
restricted, or the period of time within which such covenant or agreement is
operative, or for any other reason, it is the intent of the parties hereto
that
such provision shall be construed by limiting and reducing it, or, if necessary
eliminating it so that the provisions hereof shall be valid and enforceable
to
the extent compatible with applicable law as determined by a court of competent
jurisdiction
6. Escrow
In Event
of Litigation.
In the event that
Xx. Xxxxx brings a cause of action or files a charge against ENERGIZER in
violation of Paragraph 4 of this Agreement, Xx. Xxxxx understands and agrees
to
place in an escrow account an amount equal to the consideration described in
paragraph 2 while said cause of action is in litigation. If a court of competent
jurisdiction determines that Xx. Xxxxx should not have brought such a cause
of
action because it is without merit and/or preempted by Xx. Xxxxx’x promises in
this Agreement, then Xx. Xxxxx shall repay to ENERGIZER any settlement or
separation payment being held in the escrow account and attorneys fees incurred
by ENERGIZER defending its actions and this Agreement, in addition to any other
damages the court may deem proper. Further, Xx. Xxxxx agrees to waive any legal
or equitable claims for monetary compensation or damages incident to any such
cause of action or charge.
7. Confidentiality.
Xx. Xxxxx agrees
not to talk about, write about, or otherwise disclose the existence of this
Agreement, the terms of this Agreement, or any fact concerning its negotiation,
execution, or implementation to any person, firm, or corporation, other than
Xx.
Xxxxx’x spouse, financial advisor, Employee Benefits Plan representative, or
attorney, unless Xx. Xxxxx is required to do so by federal, state, or local
law,
or by a court of competent jurisdiction. If Xx. Xxxxx discloses the terms of
this Agreement to Xx. Xxxxx’x spouse, financial advisor or attorney, Xx. Xxxxx
shall advise that confidentiality is an essential part of this Agreement and
advise each that they are bound by the confidentiality provisions hereof. Xx.
Xxxxx agrees ENERGIZER may advise any third party that ENERGIZER deems necessary
of the existence of this Agreement and of its terms. Xx. Xxxxx agrees that
ENERGIZER shall have no liability for so notifying any third party and hereby
irrevocably waives any right to assert any such liability in the future.
8. Return
of
Documents.
As soon as
practicable following his resignation of employment, but in no event later
than
May 1, 2007, Xx. Xxxxx agrees to return to ENERGIZER all office equipment and
supplies, credit cards, cash advances, memoranda, notes, plans, programs,
records, reports, and other documentation (and copies thereof) relating to
the
business of ENERGIZER which Xx. Xxxxx possesses, including, but not limited
to,
computer hardware, software, data, disks, draft books, memoranda, notes, plans,
programs, records, reports, and other documentation (and copies thereof)
relating to ENERGIZER. If Xx. Xxxxx has any outstanding expenses, a final
expense report must be provided to ENERGIZER no later than May 1, 2007.
9. Litigation
Assistance.
In the event of
litigation between ENERGIZER and a third party involving matters which Xx.
Xxxxx
was involved with during the course of his employment, Xx. Xxxxx agrees, in
exchange for a reasonable hourly rate based on Xx. Xxxxx’x base monthly salary
in 2007, to assist ENERGIZER as requested in preparation for trial, including
but not limited to review of records and files, attendance at and review of
depositions, attendance at conferences with counsel, attendance at trial and
assistance with post trial and appeal.
10. Enforceability.
In the event that
any provision of the Agreement shall be held to be invalid or unenforceable
for
any reason whatsoever, it is agreed such invalidity or unenforceability shall
not affect any other provision of this Agreement and the remaining covenants,
restrictions and provisions hereof shall remain in full force and effect, and
any court of competent jurisdiction may so modify the objectionable provision
as
to make it valid, reasonable and enforceable.
11. Governing
Law.
This Agreement
will be governed by the internal law of the State of Missouri and not the law
of
conflicts. Any lawsuit concerning the rights and obligations created by, or
the
enforceability of, this Agreement may be brought only in the United States
District Court for the Eastern District of Missouri or, in the event such court
lacks jurisdiction, in the Missouri State Court in St. Louis County, Missouri.
The Parties waive the right to a jury trial in any such lawsuit.
12. Definition
of
ENERGIZER.
For purposes of
this Agreement, the term "ENERGIZER" shall include Energizer Holdings, Inc.,
its
wholly owned subsidiaries Eveready Battery Company, Inc., Energizer Battery,
Inc., Xxxxxx Manufacturing, Inc., its Xxxxxx-Xxxxxxxxx Sword division, and
all
of its subsidiary and affiliated companies, predecessors, successors, and
assigns of the aforementioned, and all past, present, and future officers,
directors, agents, representatives, stockholders and employees of any of the
foregoing.
13. Benefits
of
Agreement.
This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto
and
their legal representatives, successors, and permitted assigns.
14. Notices.
Any notices
necessary or required to be given under this Agreement shall be sufficiently
given if in writing, and personally delivered or mailed by registered or
certified mail, return receipt requested, postage prepaid, to the last known
addresses of the parties hereto, or to such other address or addresses as any
of
the parties shall have specified in writing to the other party hereto.
15. Entire
Agreement; Waivers.
This Agreement
constitutes the entire agreement of the parties hereto with respect to the
matters contained herein, and no modification, amendment, or waiver of any
of
the provision of this Agreement shall be effective unless in writing and signed
by all parties hereto. This Agreement constitutes the only agreement between
the
parties hereto with respect to the matters herein contained. No change or
modification of this Agreement shall be valid unless the same is in writing
and
signed by all the parties hereto. No waiver of any provision of this Agreement
shall be valid unless in writing and signed by the party against whom it is
sought to be enforced.
16. Review
of
Agreement.
Xx. Xxxxx
expressly acknowledges that ENERGIZER has given him at least twenty-one (21)
days to consider this Agreement as originally presented and that ENERGIZER
also
has given him the opportunity to discuss all aspects of this Agreement with
an
attorney before signing this Agreement. Xx. Xxxxx states that he has discussed
this Separation Agreement and General Release or, in the alternative, has freely
elected to waive any remaining part of the twenty-one (21) days and any further
opportunity to discuss this Agreement with an attorney before signing
it.
17. Revocation.
Xx. Xxxxx may
revoke his acceptance within seven (7) days after signing this Agreement. Xx.
Xxxxx’x notice of revocation must be given to ENERGIZER’s Human Resources
Department in writing within seven (7) days after signing this Agreement. If
Xx.
Xxxxx does revoke this Agreement, neither Xx. Xxxxx nor ENERGIZER will be
required to satisfy any of the terms of this Agreement. If Xx. Xxxxx has not
revoked his acceptance, within seven (7) days this Agreement's effectiveness
will become final.
18. ACKNOWLEDGEMENT.
XX. XXXXX
ACKNOWLEDGES HE HAS READ THIS AGREEMENT CONSISTING OF EIGHTEEN (18) NUMBERED
PARAGRAPHS AND FOURTEEN (14) PAGES, THAT THE ONLY CONSIDERATION FOR SIGNING
THIS
AGREEMENT ARE THE TERMS STATED HEREIN, THAT NO OTHER PROMISE OR AGREEMENT OF
ANY
KIND HAS BEEN MADE TO HIM BY ANY PERSON OR ENTITY WHATSOEVER TO CAUSE HIM TO
SIGN THIS AGREEMENT, THAT HE IS COMPETENT TO EXECUTE THIS AGREEMENT, THAT HE
FULLY UNDERSTANDS THE MEANING AND INTENT OF THIS AGREEMENT, THAT HE HAS HAD
AN
ADEQUATE OPPORTUNITY TO DISCUSS THIS DOCUMENT WITH AN ATTORNEY AND HAS DONE
SO
OR HAS VOLUNTARILY ELECTED NOT TO DO SO, AND THAT HE IS VOLUNTARILY EXECUTING
IT
OF HIS OWN FREE WILL.
XXXXXX
X.
XXXXX ENERGIZER
HOLDINGS,
INC.
____________________________ By:_________________________
Xxxxx
X.
Xxxxxx
Vice
President,
Human Resources
Date:________________________ Date:_______________________
Witness:_____________________
Date:________________________
