Exhibit
10.13
EXECUTION COPY
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT
("Agreement"), is made and entered into by and between PRESTIGE
BRANDS HOLDINGS, INC. (the "Company") and MARK PETTIE
("Executive") as of January 1, 2009, ("Effective Date").
W I T N E S S E T
H:
WHEREAS, the Company and Executive previously entered
into an Employment Agreement on January 19, 2007, (the "Prior
Agreement") setting forth the terms and conditions of Executive's
employment with the Company; and
WHEREAS, the Prior Agreement was amended December 31,
2008, to comply with applicable provisions of Section 409A of the
Internal Revenue Code of 1986, as amended ("Code"); and
WHEREAS, the Company and the Executive deem it
appropriate and in their best interests that the Prior Agreement be
amended and restated to incorporate the changes of the December 31,
2008 and other amendments into a single document;
NOW,
THEREFORE, the Agreement
is hereby amended and restated, as follows, effective January 1,
2009:
Subject to the terms and conditions of this
Agreement, the Company hereby employs Executive as its Chief
Executive Officer, reporting to the Board of Directors of the
Company (the "Board"). During the term of this
Agreement, subject to Section 3.1 , Executive also shall
serve as Chairman of the Board.
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2.
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DURATION
OF AGREEMENT.
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2.1 Initial
Term . This employment shall begin as of
the Effective Date, and shall continue until it terminates pursuant
to this Agreement. Unless extended pursuant to
Section 2.2 , or earlier terminated pursuant to any of
Articles 5, 6, 7, 8 or 9 , this Agreement will terminate on
March 31, 2010. The specified period during which this
Agreement is in effect is the "Term."
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2.2.1
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By
Agreement . The Term may be extended to a
specified future date at any time by the specific written agreement
of the parties signed prior to the original expiration date
specified in Section 2.1 , or any subsequent expiration date
established pursuant to Section 2.2.2.
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2.2.2
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Annual
Extension . For purposes of this Agreement,
April 1, 2010 and each April 1 thereafter shall be referred to as
an "Anniversary Date," and the one-year period from each
Anniversary Date to the next shall be referred to as a "Contract
Year." On each Anniversary Date, beginning April 1,
2010, unless either party to this Agreement has notified the other
in writing not less than three (3) months prior to such Anniversary
Date of that party’s intention to allow this Agreement to
expire and not be renewed at the end of the then current Term, the
Term shall automatically be extended for one Contract Year on and
from each Anniversary Date.
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3.1
Position . Executive shall serve as the
Company's Chief Executive Officer. Executive shall
perform such duties and responsibilities as may be prescribed from
time-to-time by the Board, which shall be consistent with the
responsibilities of similarly situated executives of comparable
companies in similar lines of business. So long as
Executive is serving as Chief Executive Officer, the Company shall
nominate Executive for election as a member of the Board at each
meeting of the Company's shareholders at which the election of
Executive is subject to a vote by the Company's shareholders and to
recommend that the shareholders of the Company vote to elect
Executive as a member of the Board, and the Company shall designate
Executive as Chairman of the Board in each Term. From
time to time, Executive also may be designated to such other
offices within the Company or its subsidiaries as may be necessary
or appropriate for the convenience of the businesses of the Company
and its subsidiaries; provided, however, during the Term, he shall,
in addition to the title of Chief Executive Officer, also continue
to hold the title of Chairman.
3.2
Full-Time Efforts . Executive shall perform and
discharge faithfully, diligently and to the best of his ability
such duties and responsibilities and shall devote his full-time
efforts to the business and affairs of the
Company. Executive agrees to promote the best interests
of the Company and to take no action that in any way damages the
public image or reputation of the Company, its subsidiaries or its
affiliates.
3.3 No
Interference With Duties . Executive shall not (i) engage in
any activities, or render services to or become associated with any
other business that in the reasonable judgment of the Board
violates Article 10 of this Agreement; or (ii) devote time
to other activities which would inhibit or otherwise interfere with
the proper performance of his duties, provided ,
however , that it shall not be a violation of this Agreement
for Executive to (i) devote reasonable periods of time to
charitable and community activities and industry or professional
activities, or (ii) manage personal business interests and
investments, so long as such activities do not interfere with the
performance of Executive’s responsibilities under this
Agreement. Executive may, with the prior approval of the
Board (or applicable committee), serve on the boards of directors
(or other governing body) of other for profit corporations or
entities, consistent with this Agreement and the Company's
policies.
3.4 Work
Standard . Executive hereby agrees that he
shall at all times comply with and abide by all terms and
conditions set forth in this Agreement, and all applicable
work
policies, procedures and rules as may be issued
by Company. Executive also agrees that he shall comply
with all federal, state and local statutes, regulations and public
ordinances governing the performance of his duties
hereunder.
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4.
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COMPENSATION AND BENEFITS.
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4.1 Base
Salary . Subject to the terms and conditions
set forth in this Agreement, the Company shall pay Executive, and
Executive shall accept an annual salary ("Base Salary") in the
amount of Four Hundred Seventy-five Thousand and No/100 Dollars
($475,000). The Base Salary shall be paid in accordance
with the Company’s normal payroll practices. The
Executive shall be entitled to periodic reviews (no less frequently
than annually) for increases in Base Salary during each Contract
Year, as shall be determined and approved by the Board, taking into
account the performance of the Company and the Executive, and other
factors that the Board considers relevant to the salaries of
executives holding similar positions with enterprises comparable to
the Company. The first such review shall take place during or
before April 2009.
4.2
Incentive, Savings and
Retirement Plans . During the Term, Executive shall be
entitled to participate in all incentive (including, without
limitation, long term incentive plans), savings and retirement
plans, practices, policies and programs applicable generally to
senior executive officers of the Company ("Senior Executives"), and
on the same basis as such Senior Executives, except as to benefits
that are specifically applicable to Executive pursuant to this
Agreement. Without limiting the foregoing, the following
provisions shall apply with respect to Executive:
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4.2.1
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Annual Bonus
Plan . Executive shall be entitled to an
annual bonus, the amount of which shall be determined by the
Compensation Committee of the Board (the
"Committee"). The amount of and performance criteria
with respect to any bonus in any fiscal year shall be determined
not later than the date or time prescribed by Treas. Reg. §
1.162-27(e) in accordance with a formula to be agreed upon by the
Company and Executive and approved by the Committee that reflects
the financial and other performance of the Company and the
Executive's contributions thereto. Throughout the Term,
the Executive's annual target (subject to such performance and
other criteria as may be established by the Committee) bonus shall
be no less than one hundred percent (100%) of the Base Salary and
the maximum bonus shall be no less than one hundred fifty percent
(150%) of the Base Salary.
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4.2.2
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Welfare
Benefit Plans . During the Term, Executive and
Executive’s eligible dependents shall be eligible for
participation in, and shall receive all benefits under, the welfare
benefit plans, practices, policies and programs provided by the
Company (including, without limitation, medical, prescription,
dental, disability, executive life, group life, accidental death
and travel accident insurance plans and programs) ("Welfare Plans")
to the extent applicable generally to Senior Executives.
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4.2.3
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Vacation . During each Contract Year through
the Term, Executive shall be granted four (4) weeks’ paid
vacation in accordance with the Company’s vacation policy as
in effect and as approved by the Committee from time to
time. The timing of paid vacations shall be scheduled in
a reasonable manner by the Executive.
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4.2.4
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Business
Expenses . Executive shall be reimbursed for
all reasonable business expenses incurred in carrying out the work
hereunder. Executive shall follow the Company’s expense
procedures that generally apply to other Senior Executives in
accordance with the policies, practices and procedures of the
Company to the extent applicable generally to such Senior
Executives.
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4.2.5
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Perquisites . Executive shall be entitled to
receive such executive perquisites, fringe and other benefits as
are provided to the senior most executives and their families under
any of the Company’s plans and/or programs in effect from
time to time and such other benefits as are customarily available
to Senior Executives.
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4.2.6
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LTIP . Executive shall participate to the
same extent as other Senior Executives in awards under the
Company’s 2005 Long-Term Equity Incentive Plan (the "LTIP
Plan"). Executive’s LTIP Award shall have at the
time of grant a value equal to Executive’s Base Salary then
in effect at the time of the LTIP Award multiplied by
265%. The composition of LTIP Awards shall be determined
in accordance with the prevailing practice applicable to Senior
Executives. The Company confirms that upon a "Change in
Control" (as defined in the LTIP Plan), all awards to the Executive
thereunder fully vest with no requirement that the
Executive’s employment with the Company have
terminated.
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5.
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TERMINATION FOR CAUSE.
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This Agreement
may be terminated immediately at any time by the Company without
any liability owing to Executive or Executive’s beneficiaries
under this Agreement, except Base Salary through the date of
termination and benefits under any plan or agreement covering
Executive which shall be governed by the terms of such plan or
agreement, under the following conditions, each of which shall
constitute "Cause" or "Termination for Cause":
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(a)
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Any willful act
by Executive involving fraud and any willful breach by Executive of
applicable regulations of competent authorities in relation to
trading or dealing with stocks, securities, investments, regulation
of the Company’s business and the like or any willful act by
Executive resulting in an investigation by applicable regulatory
authorities which, in each case, a majority of the Board determines
in its sole and absolute discretion materially adversely affects
the Company or Executive’s ability to perform his duties
under this Agreement;
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(b)
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Attendance at
work in a state of intoxication or otherwise being found in
possession at his place of work of any prohibited drug or
substance, possession of which would amount to a criminal
offense;
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(c)
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Executive's
personal dishonesty or willful misconduct in connection with his
duties to the Company;
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(d)
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Breach of
fiduciary duty to the Company involving personal profit by the
Executive;
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(e)
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Assault or
other act of violence against any employee of the Company or other
person during the course of his employment;
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(f)
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Conviction of
the Executive for any felony or crime involving moral
turpitude;
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(g)
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Material
intentional breach by the Executive of any provision of this
Agreement or of any Company policy adopted by the Board;
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(h)
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The willful
continued failure of Executive to perform substantially
Executive’s duties with the Company (other than any such
failure resulting from incapacity due to Disability, and
specifically excluding any failure by Executive, after good faith,
reasonable and demonstrable efforts, to meet performance
expectations for any reason), after a written demand for
substantial performance is delivered to Executive by a majority of
the Board that specifically identifies the manner in which such
Board believes that Executive has not substantially performed
Executive’s duties.
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For purposes of
this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive’s action or omission was
in the best interest of the Company. Any act, or failure
to act, based upon and performed in accordance with authority given
pursuant to a resolution duly adopted by the Board or based upon
the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interest of the Company. The
cessation of employment of Executive shall not be deemed to be for
Cause unless and until there shall have been delivered to Executive
a copy of a resolution duly adopted by the affirmative vote of not
less than a majority of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after
reasonable notice is provided to Executive and Executive is given
an opportunity to be heard before the Board), finding that, in the
good faith opinion of such Board, Executive is guilty of the
conduct described in any one or more of subparagraphs (a) through
(h) above, and specifying the particulars thereof in
detail.
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6.
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TERMINATION UPON DEATH.
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Notwithstanding
anything herein to the contrary, this Agreement shall terminate
immediately upon Executive’s death, and the Company shall
have no further liability to Executive or his beneficiaries under
this Agreement, other than for payment of Accrued
Obligations (as
defined in Section 8.2(a)(1) ), and the timely payment or
provision of Other Benefits (as defined in Section 8.2(c) ),
including without limitation benefits under such plans, programs,
practices and policies relating to death benefits, if any, as are
applicable to Executive on the date of his death. This
payment shall be paid in a lump sum to the Executive’s estate
within 90 days after the Company is given notice of the
Executive’s death. The rights of the
Executive’s estate with respect to stock options and
restricted stock, and all other benefit plans, shall be determined
in accordance with the specific terms, conditions and provisions of
the applicable agreements and plans; provided, however, that any
LTIP Award granted under Section 4.2.6 of this Agreement
shall immediately vest and become distributable as soon as
practicable after the death of the Executive.
If the Company determines in good faith that the
Disability of Executive has occurred during the Term (pursuant to
the definition of Disability set forth below), it may give to
Executive written notice of its intention to terminate
Executive’s employment. In such event,
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such written notice by
Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, Executive shall not have returned
to full-time performance of Executive’s duties. If
Executive’s employment is terminated by reason of his
Disability, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued
Obligations (as defined in Section 8.2(a)(1) ) and the
timely payment or provision of Other Benefits (as defined in
Section 8.2(c) , including without limitation benefits under
such plans, programs, practices and policies relating to disability
benefits, if any, as are applicable to Executive on the Disability
Effective Date. The rights of the Executive with respect
to stock options and restricted stock, and all other benefit plans,
shall be determined in accordance with the specific terms,
conditions and provisions of the applicable agreements and plans;
provided, however, that any LTIP Award granted under Section
4.2.6 of this Agreement shall immediately vest and become
distributable upon the Disability Effective Date.
For purposes of this Agreement, "Disability"
means the Executive: (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than
twelve (12) months; or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months, receiving income replacement
benefits for a period of not less than three (3) months under an
accident and health plan covering employees or directors of the
Company. Medical determination of Disability may be made
by either the Social Security Administration or by the provider of
an accident or health plan covering employees or directors of the
Company provided that the definition of "disability" applied under
such disability insurance program complies with the requirements of
the preceding sentence. Upon the request of the plan
administrator, the Executive must submit proof to the plan
administrator of the Social Security Administration’s or the
provider’s determination.
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8.
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EXECUTIVE'S TERMINATION OF EMPLOYMENT FOR GOOD
REASON OR WITHOUT CAUSE .
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8.1
Executive's Termination of Employment for Good Reason
. Executive’s employment may be terminated at
any time by Executive for Good Reason or no reason. For
purposes of this Agreement, "Good Reason" shall mean:
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(a)
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Other than his
removal for Cause pursuant to Article 5 , without the
written consent of Executive, the assignment to Executive of any
duties inconsistent in any material respect with Executive’s
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as in effect
on the Effective Date, or any other action by the Company which
results in a demonstrable diminution in such position, authority,
duties or responsibilities (including without limitation the
designation of another person as Chairman); but excluding, for this
purpose an isolated, insubstantial and inadvertent action not taken
in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Executive;
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(b)
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A reduction by
the Company in Executive’s Base Salary as in effect on the
Effective Date or as the same may be increased from time to
time;
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(c)
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A reduction by
the Company in Executive's annual target bonus (expressed as a
percentage of Base Salary) unless such reduction is a part of an
across-the-board decrease in target bonuses affecting all other
Senior Executives; provided, however that in any event, the Company
may not reduce Executive’s annual target bonus (expressed as
a percentage of Base Salary) below seventy-five percent (75%) of
the Base Salary;
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(d)
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The
Company’s giving notice under Section 2.2.2 of its
intention not to renew this Agreement unless at that time, the
Company could terminate this Agreement and Executive’s
employment for "Cause."
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(e)
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The failure by
the Company to continue in effect any "pension plan or arrangement"
or any "compensation plan or arrangement" in which Executive
participates or the elimination of Executive’s participation
in any such plan (except for across the board plan changes or
terminations similarly affecting other Senior Executives); provided
however that nothing in this provision shall have the effect of
impairing Executive’s entitlement to an annual target bonus
in the amount set forth in Section 8.1(c) above;
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(f)
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The
Company’s requiring Executive, without his consent, to be
based at any office or location more than thirty (30) miles from
the Company's current headquarters in Irvington, New
York;
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(g)
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The material
breach by the Company of any provision of this Agreement;
or
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(h)
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A "Change in
Control" (as defined in the LTIP Plan) occurs and either the
Company repudiates this Agreement or a successor (if any and
applicable) (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company fails to assume expressly and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
succession had taken place.
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Good Reason shall not include Executive’s
death or Disability. Executive’s continued
employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstance constituting Good Reason
hereunder, provided that Executive raises to the attention of the
Board any circumstance he believes in good faith constitutes Good
Reason within ninety (90) days after occurrence or be foreclosed
from raising such circumstance thereafter. The Company
shall have an opportunity to cure any claimed event of Good Reason
(other than under subparagraph (h) above) within 30 days of notice
from Executive.
If Executive terminates his employment for Good
Reason, upon the execution and effectiveness of a mutually
agreeable release of the Company from all liability (a "Release"),
he shall be entitled to the same benefits he would be entitled to
under Article 8 as if terminated without
Cause. If Executive terminates his employment without
Good Reason, this Agreement shall terminate without further
obligations to Executive, other than for payment of Accrued
Obligations (as defined in Section 8.2(a)(1) ) and the
timely payment or provision of Other Benefits (as defined in
Section 8.
