Exhibit
10.1
AMENDED CHANGE OF
CONTROL
EMPLOYMENT
AGREEMENT
This Amended Change of Control
Employment Agreement (the “Amended Agreement”) by and
between Energizer Holdings, Inc. (the “Company”), a
Missouri corporation, and ________
(“Executive”),
WITNESSETH:
WHEREAS, the Company, on
behalf of itself, its subsidiaries and its stockholders, and any
successor or surviving entity, wishes to encourage
Executive’s continued service and dedication in the
performance of his duties, notwithstanding the possibility, threat
or occurrence of a Change of Control of the Company; and
WHEREAS, the Board of
Directors of the Company (the “Board”) believes that
the prospect of a pending or threatened Change of Control
inevitably creates distractions and personal risks and
uncertainties for its executives, and that it is in the best
interests of Company and its stockholders to minimize such
distractions to certain executives, and the Board further believes
that it is in the best interests of the Company to encourage its
executives’ full attention and dedication to their duties,
both currently and in the event of any threatened or pending Change
of Control; and
WHEREAS, the Board has
determined that appropriate steps should be taken to reinforce and
encourage the continued retention of certain members of the
Company’s management, including Executive, and the attention
and dedication of management to their assigned duties without
distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change of Control.
NOW, THEREFORE, in order to
induce Executive to remain in the employ of the Company and in
consideration of his continued service to the Company, the Company
agrees that Executive shall receive the benefits set forth in this
Amended Agreement in the event that Executive’s employment
with the Company is terminated subsequent to a Change of Control in
the circumstances described herein, and the parties further agree
as follows:
The
meaning of each defined term that is used in this Amended Agreement
is set forth below.
(a)
AAA. The American Arbitration Association.
(b)
Accounting Firm. The meaning of this term is set forth
in Subsection IV(f)(ii).
(c)
Additional Pay. The meaning of this term is set forth in
Subsection IV(b).
(d)
After-Tax Amount. The meaning of the term is set forth
in Subsection IV(f)(i).
(e)
After-Tax Floor Amount. The meaning of this term is set
forth in Subsection IV(f)(i).
(f)
Agreement Payments. The meaning of this term is
set forth in Subsection IV(f).
(g)
Beneficiaries. The meaning of this term is set forth in
Subsection VI(b).
(h)
Board. The meaning of this term is set forth in the
second WHEREAS clause of this Amended Agreement.
(i)
Business Combination. The meaning of this term is
set forth in Subsection I(k)(iii).
(j)
Cause. For purposes of this Amended Agreement,
“Cause” shall mean Executive’s willful breach or
failure to perform his/her employment duties. For
purposes of this Subsection I(j), no act, or failure to act, on the
part of Executive shall be deemed “willful” unless
done, or omitted to be done, by Executive not in good faith and
without reasonable belief that such action or omission was in the
best interest of the Company. Notwithstanding the
foregoing, Executive’s employment shall not be treated as
having been terminated for Cause unless the Company delivers to
Executive, prior to or at Termination of Employment, a certificate
of a resolution duly adopted by the affirmative vote of not less
than seventy-five percent (75%) of the entire membership of the
Board at a meeting of the Board called and held for such purpose
(after reasonable notice to Executive and an opportunity for
Executive, together with Executive’s counsel, to be heard
before the Board), finding that in the good faith opinion of the
Board, Executive has engaged in such willful conduct and specifying
the details of such willful conduct.
(k) Change
of Control. For purposes of this Amended Agreement, a
“Change of Control” shall be deemed to have occurred if
there is a change of control of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), whether or not the
Company is then subject to such reporting requirement; provided
that, without limitation, such a Change of Control shall be deemed
to have occurred if:
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any “person” (as
such term is used in Sections 13(d) and 14(d)(2) as currently in
effect, of the Exchange Act) is or becomes a “beneficial
owner” (as determined for purposes of Regulation 13D-G, as
currently in effect, of the Exchange Act), directly or indirectly,
of securities representing twenty percent (20%) or more of the
total voting power of all of the Company’s then outstanding
voting securities. For purposes of this Amended
Agreement, the term “person” shall not
include: (A) the Company or any of its Subsidiaries, (B)
a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Subsidiaries, or (C) an
underwriter temporarily holding securities pursuant to an offering
of said securities;
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during any period of two (2)
consecutive calendar years, individuals who at the beginning of
such period constitute the Board and any new director(s) whose
election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board;
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the stockholders of the
Company approve a merger, consolidation or sale or other
disposition of all or substantially all of the assets of the
Company (a “Business Combination”), in each case,
unless following such Business Combination: (i) all or
substantially all of the individuals and entities who were the
“beneficial owners” (as determined for purposes of
Regulation 13D-G, as currently in effect, of the Exchange Act) of
the outstanding voting securities of the Company immediately prior
to such Business Combination beneficially own, directly or
indirectly, securities representing more than fifty percent (50%)
of the total voting power of the then outstanding voting securities
of the corporation resulting from such Business Combination or the
parent of such corporation (the “Resulting
Corporation”); (ii) no “person” (as such term is
used in Section 13(d) and 14(d)(2), as currently in effect, of the
Exchange Act), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or the
Resulting Corporation, is the “beneficial owner” (as
determined for purposes of Regulation 13D-G, as currently in
effect, of the Exchange Act), directly or indirectly, of voting
securities representing twenty percent (20%) or more of the total
voting power of then outstanding voting securities of the Resulting
Corporation; and (iii) at least a majority of the members of the
board of directors of the Resulting Corporation were members of the
Board at the time of the execution of the initial agreement, or at
the time of the action of the Board, providing for such Business
Combination;
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the stockholders of the
Company approve a plan of complete liquidation or dissolution of
the Company;
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a Section 409A Change of
Control; or
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any other event that a simple
majority of the Board, in its sole discretion, shall determine
constitutes a Change of Control.
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(l) Code. For
purposes of this Amended Agreement, “Code” shall mean
the Internal Revenue Code of 1986, as amended.
(m) Company. The
meaning of this term is set forth in the first paragraph of this
Amended Agreement and in Subsection VI(a).
(n) Controlled
Group. For purposes of this Amended Agreement,
“Controlled Group” shall mean a group including any
corporation or other business entity that from time to time is,
along with the Company, a member of a controlled group of
businesses, as defined in sections 414(b) and 414(c) of the Code,
provided that the language “at least 50 percent” shall
be used instead of “at least 80 percent” each place it
appears in such test. A corporation or other business entity ceases
to be a member of the Controlled Group when a sale or other
disposition causes it to fall outside the definition of the term
Controlled Group.
(o) Disability. For
purposes of this Amended Agreement, “Disability” shall
mean an illness, injury or similar incapacity which 52 weeks after
its commencement, continues to render Executive unable to perform
the material and substantial duties of Executive’s position
or any substantially similar occupation or substantially similar
employment for which Executive is qualified or may reasonably
become qualified by training, education or
experience. Any question as to the existence of a
Disability upon which Executive and the Company cannot agree shall
be determined by a qualified independent physician selected by
Executive (or, if Executive is unable to make such selection, by
any adult member of Executive’s immediate family or
Executive’s legal representative), and approved by the
Company, such approval not to be unreasonably
withheld. The determination of such physician made in
writing to both the Company and Executive shall be final and
conclusive for all purposes of this Amended Agreement.
(p) Employer. For
purposes of this Amended Agreement, “Employer” shall
mean the Company or the Subsidiary, as the case may be, with which
Executive has an employment relationship.
(q) Exchange
Act. This term shall have the meaning set forth in
Subsection I(k).
(r) Executive. This
term shall have the meaning set forth in the first paragraph of
this Amended Agreement.
(s) Excise
Tax. This term shall have the meaning set forth in
Subsection IV(f)(i).
(t) Floor
Amount. This term shall have the meaning set forth in
Subsection IV(f)(i).
(u) Good
Reason. For purposes of this Amended Agreement,
“Good Reason” shall mean the occurrence, without
Executive’s prior express written consent, of any of the
following circumstances:
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The assignment to Executive of
any duties inconsistent with Executive’s status or
responsibilities as in effect immediately prior to a Change of
Control, including imposition of travel obligations which differ
materially from required business travel immediately prior to the
Change of Control;
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(A) A reduction in
Executive’s annual base salary as in effect immediately
before the Change of Control; or (B) the failure to pay a bonus
award to which Executive is entitled under any short-term incentive
plan(s) or program(s), any long-term incentive plan(s) or
program(s), or any other incentive compensation plan(s) or
program(s) of Company in which Executive participated immediately
prior to the time of the Change of Control;
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A change in the principal
place of Executive’s employment, as in effect immediately
prior to the Change of Control to a location more than fifty (50)
miles distant from the location of such principal place at such
time;
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The failure by the Company to
offer Executive participation in incentive compensation or stock or
stock option plans on at least a substantially equivalent basis,
both in terms of the nature and amount of benefits provided and the
level of Executive’s participation, as is then being provided
by the Company to similarly situated peer executives of the
Company;
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(A) Except as required by law,
the failure by the Company to offer Executive benefits on at least
a substantially equivalent basis, in the aggregate, to those then
being provided by the Company to similarly situated peer executives
of the Company under the qualified and non-qualified employee
benefit and welfare plans of the Company, including, without
limitation, any pension, deferred compensation, life insurance,
medical, dental, health and accident, disability, retirement or
savings plan(s) or program(s) offered by the Company; (B) the
taking of any action by the Company that would, directly or
indirectly, materially reduce or deprive Executive of any other
perquisite or benefit then being offered by the Company to
similarly situated peer executives of the Company (including,
without limitation, Company-paid and/or reimbursed club
memberships, financial counseling fees and the like); or (C) the
failure by the Company to treat Executive under the Company’s
vacation policy, past practice or special agreement in the same
manner and to the same extent as then being provided by the Company
to similarly situated peer executives of the Company;
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The failure of the Company to
obtain a satisfactory written agreement from any successor prior to
consummation of the Change of Control to assume and agree to
perform this Amended Agreement, as contemplated in Subsection
VI(a); or
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Any purported Termination of
Employment by the Company of Executive that is not effected
pursuant to a Notice of Termination satisfying the requirements of
Subsection III(c) or, if applicable, Subsection
I(j). For purposes of this Amended Agreement, no such
purported Termination of Employment shall be effective except as
constituting Good Reason.
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Executive’s continued
employment with the Company or any Subsidiary shall not constitute
a consent to, or a waiver of rights with respect to, any
circumstances constituting Good Reason hereunder. Any
good faith determination of “Good Reason” made by the
Executive shall be conclusive for purposes of this Amended
Agreement.
(v)
Gross-Up Payment. The meaning of this term is set
forth in Subsection IV(f)(i).
(w)
Notice of Termination. The meaning of this term is
set forth in Subsection III(c).
(x)
Other Payments. The meaning of this term is set
forth in Subsection IV(f)(i).
(y)
Payments. The meaning of this term is set forth in
Subsection IV(f)(i).
(z)
Resulting Corporation. The meaning of this term is
set forth in Subsection I(k)(iii).
(aa)
Retirement. For purposes of this Amended
Agreement, “Retirement” shall mean Executive’s
voluntary Termination of Employment with the Company, other than
for Good Reason, and in accordance with the Company’s
retirement policy generally applicable to its employees or in
accordance with any prior or contemporaneous retirement agreement
or arrangement between Executive and the Company.
(bb)
Section 409A Change of Control. For purposes
of this Amended Agreement, “Section 409A Change of
Control” shall mean:
(i) The acquisition
by one person, or more than one person acting as a group, of
ownership of stock of the Company that, together with stock held by
such person or group, constitutes more than 50% of the total fair
market value or total voting power of the stock of the
Company. Notwithstanding the above, if any person or
more than one person acting as a group, is considered to own more
than 50% of the total fair market value or total voting power of
the stock of the Company , the acquisition of additional stock by
the same person or persons will not constitute a Change of
Control.;
(ii) The
acquisition by one person, or more than one person acting as a
group, of ownership of stock of the Company, that together with
stock of the Company acquired during the twelve-month period ending
on the date of the most recent acquisition by such person or group,
constitutes 30% or more of the total voting power of the stock of
the Company. Notwithstanding the above if any person or more than
one person acting as a group is considered to own 30% or more the
total fair market value or total voting power of the stock of the
Company , the acquisition of additional stock by the same person or
persons will not constitute a Change of Control.;
(iii) A
majority of the members of the Company’s board of directors
is replaced during any twelve-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company’s board of directors before the date
of the appointment or election;
(iv) One
person, or more than one person acting as a group, acquires (or has
acquired during the twelve-month period ending on the date of the
most recent acquisition by such person or group) assets from the
Company that have a total gross fair market value (determined
without regard to any liabilities associated with such assets)
equal to or more than 40% of the total gross fair market value of
all of the assets of the Company immediately before such
acquisition or acquisitions.
Persons will not be considered
to be acting as a group solely because they purchase or own stock
of the same corporation at the same time, or as a result of the
same public offering. However, persons will be
considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or
acquisition of stock, or similar business transaction with the
Company.
This definition of Change in
Control shall be interpreted in accordance with, and in a manner
that will bring the definition into compliance with, the
regulations under Section 409A of the Internal Revenue
Code.
(cc)
Severance Bonus Amount. For purposes of this
Amended Agreement, “Severance Bonus Amount” means an
amount determined by averaging the percentages of Executive’s
base salary which were actually awarded to Executive as incentive
bonuses under short-term incentive plans of the Company or any of
its Subsidiaries for the five most recently completed fiscal years
prior to the fiscal year in which the Change of Control occurs, and
multiplying such average percentage by the greater of (A)
Executive’s annual base salary in effect immediately prior to
the Termination of Employment, or (B) Executive’s annual base
salary in effect as of the date of the Change of
Control. If Executive was not employed by the Company or
any of its Subsidiaries for the entire five-year period, the
average shall be determined only for those years during which
Executive was so employed.
(dd)
Subsidiary. For purposes of this Amended
Agreement, “Subsidiary” shall mean any corporation of
which fifty percent (50%) or more of the voting stock is owned,
directly or indirectly, by the Company.
(ee)
Target Bonus. For purposes of this Amended
Agreement, “Target Bonus” means the assigned bonus
target for the Executive under any short-term incentive plan(s) of
the Company, multiplied by his or her base salary, for the relevant
fiscal year. If the Executive’s base salary is
changed during the relevant fiscal year, the Target Bonus shall be
calculated by multiplying the Executive’s assigned bonus
target by the highest base salary in effect during that fiscal
year.
(ff)
Termination Notice Date. For purposes of this
Amended Agreement, “Termination Notice Date” shall
mean:
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In the case of
Executive’s Termination of Employment because of Disability,
thirty (30) calendar days in advance of Executive’s
Termination of Employment; and
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In the case of
Executive’s Termination of Employment for Cause , a
date not be less than thirty (30) calendar days in advance of
Executive’s Termination of Employment and , in
the case of Executive’s Termination of Employment for Good
Reason , a date not be less than thirty (30) calendar
days nor more than sixty (60) calendar days in advance of
Executive’s Termination of Employment.
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Termination of Employment. For
purposes of this Amended Agreement, “Termination of
Employment” shall mean Executive’s separation from
service with the Employer and all other members of the Controlled
Group, as the term “separation from service ” is
defined in IRS regulations under Section 409A of the Code
(generally, a decrease in the performance of services to no more
than 20% of the average for the preceding 36-month period, and
disregarding leave of absences up to six months where there is a
reasonable expectation the Employee will return).
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II. Term
of Agreement.
(a) General. Upon
execution by Executive, this Amended Agreement shall commence
effective as of January 28, 2008. This Amended Agreement
shall continue in effect through May 1, 2011; provided, however,
that commencing on May 1, 2009, and every May 1 thereafter, the
term of this Amended Agreement shall automatically be extended for
an additional year unless, not later than ninety (90) calendar days
prior to the date on which this Amended Agreement otherwise
automatically would be extended, the Company shall have given
notice to Executive that it does not wish to extend this Amended
Agreement; provided further, however, that if a Change of Control
shall have occurred during the original or any extended term of
this Amended Agreement, this Amended Agreement shall continue in
effect for a period of thirty-six (36) months beyond the month in
which the Change of Control occurred.
(b) Disposition
of Employer. In the event Executive is employed by a
Subsidiary, the terms of this Amended Agreement shall expire if
such Subsidiary is sold or otherwise disposed of prior to the date
on which a Change of Control occurs, unless Executive continues in
employment with the Controlled Group after such sale or other
disposition. If Executive’s Employer is sold or
disposed of on or after the date on which a Change of Control
occurs, this Amended Agreement shall continue through its original
term or any extended term then in effect.
(c) Deemed
Change of Control. If Executive’s Termination of
Employment occurs prior to the date on which a Section 409A Change
of Control occurs, and such Termination of Employment was at the
request of a third party who has taken steps to effect a Section
409A Change of Control, or otherwise was in connection with the
Section 409A Change of Control, then for all purposes of this
Amended Agreement, a Section 409A Change of Control
shall be deemed to have occurred prior to such Termination of
Employment.
(d) Expiration
of Agreement. No termination or expiration of this
Amended Agreement shall affect any rights, obligations or
liabilities of either party that shall have accrued on or prior to
the date of such termination or expiration.
III. Benefits
Following Change of Control.
(a) Prorated
Payout of Short Term Bonus. If a Change of Control shall
have occurred, Executive shall be entitled to, immediately upon the
date of the Change of Control, payment in full of Executive’s
prorated bonus for the fiscal year in which the Change of Control
occurs. The prorated bonus amount shall be calculated as
Executive’s Target Bonus for the fiscal year in which the
Change of Control occurs, or, if greater, the actual bonus awarded
to Executive under any short-term incentive plan(s) of the Company
for the fiscal year immediately preceding the fiscal year in which
the Change of Control occurs, divided by 365 and multiplied by the
number of calendar days in said year immediately up to the day on
which the Change of Control occurs. The payment described in this
section III(a) shall be subject to any valid deferral election
which was made prior to that time by the Executive under any
Company qualified pension plan, nonqualified pension plan, 401(k),
excess 401(k) or non-qualified deferred compensation plan then in
effect. The payment of such prorated short-term bonus shall also be
taken into consideration for purposes of computation of benefits
under any qualified and/or nonqualified employee pension benefit
plans or employee welfare benefit plans then maintained by the
Company, and, if applicable, any agreement entered into between the
Executive and the Company which is then in effect, in accordance
with the terms and conditions of such plans and/or
agreements.
(b) Entitlement
to Benefits Upon Termination of Employment. If a Change
of Control shall have occurred, Executive shall be entitled to, in
addition to the benefits described in Subsection III(a), the
benefits provided in Section IV hereof upon his/her subsequent
Termination of Employment within three (3) years after the date of
the Change of Control unless such Termination of Employment is (i)
a result of Executive’s death or Retirement, (ii) for Cause,
(iii) a result of Executive’s Disability, or (iv) by
Executive other than for Good Reason. For purposes of
Executive’s entitlement to benefits under Section IV of this
Amended Agreement, “Termination of Employment” shall be
limited to a Termination of Employment that is not as a result of
Executive’s death, Retirement or Disability and (x) if by the
Company, is not for Cause, or (y) if by Executive, is for Good
Reason.
(c) Notice
of Termination. Any purported Termination of Employment
by either the Company or Executive shall be communicated on the
Termination Notice Date by written Notice of Termination to the
other party hereto in accordance with Section VIII. For
purposes of this Amended Agreement, a “Notice of
Termination” shall mean a written notice that indicates the
specific provision(s) of this Amended Agreement relied upon and
sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for Executive’s Termination of Employment
under the provision(s) so indicated. If
Executive’s Termination of Employment shall be for Cause or
by Executive for other than Good Reason, the Company shall pay
Executive his/her full base salary through the Termination of
Employment at the salary level in effect at the time Notice of
Termination is given and shall pay any amounts to be paid to
Executive pursuant to any other compensation or stock or stock
option plan(s), program(s) or employment agreement(s) then in
effect, at the time such payments are due under such plan(s),
program(s) or agreement(s), and the Company shall have no further
obligations to Executive under this Amended Agreement.
If
within thirty (30) calendar days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the
other party that a dispute exists concerning the grounds
