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EXHIBIT 10.21
EXECUTIVE EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AND NON-COMPETITION AGREEMENT (this "AGREEMENT")
is entered into and effective as of
_____________, 2002 ("Closing Date"), by and
between Steven Schultz ("Executive") and
United Industries Corporation, a
Delaware corporation ("United). United, the
Company (as defined below) and
Executive are sometimes collectively
referred to herein as the "Parties" and
individually as a "Party."
Executive has
been an employee, officer, director and stockholder of
Schultz Company, a Missouri corporation
("Schultz"), and as such, possesses
special knowledge, abilities and experience
regarding the business of Schultz.
Upon the closing of the transaction as set
forth in the Merger Agreement to
which United and Schultz are parties dated
_________, 2002 ("Merger Agreement"),
Schultz became a wholly owned subsidiary of
United (the "Closing") ("United" and
"Schultz" are herein collectively referred
to herein as the "Company"). The
Company desires to employ Executive as a
Senior Vice President with respect to
its business and Executive desires to
provide services to the Company upon the
terms and conditions set forth in this
Agreement.
In consideration
of the mutual covenants and agreements set forth herein,
the Parties agree as follows:
1. EMPLOYMENT.
The Company
hereby engages Executive as a Senior Vice President, and
Executive hereby accepts such engagement,
for a period commencing as of the
Closing Date and terminating on the third
anniversary of the Closing (the
"Employment Period"), subject to earlier
termination as provided in Paragraphs
12, 13 or 14 of this Agreement. Executive
shall have such responsibilities,
duties and authorities, and shall render
such services of an executive and
administrative character, or act in such
other executive capacity for the
Company and its affiliates, as the
Company's Chief Executive Officer ("CEO") or
its Board of Directors (the "Board") shall
from time to time reasonably direct.
Executive shall devote his best efforts,
energies and abilities and his full
business time, skill and attention (except
as described below and except for
permitted vacation periods and reasonable
periods of illness or other
incapacity) to the business and affairs of
the Company. Executive shall perform
the duties and carry out the
responsibilities assigned to him, to the best of
his ability, in a diligent, trustworthy,
businesslike and efficient manner for
the purpose of advancing the business of
the Company. It is understood and
agreed that Executive shall render such
services from St. Louis, Missouri;
provided that, the Executive may be
required to travel from time to time at the
reasonable direction of the Company.
2. BASE COMPENSATION AND
INCENTIVE.
(a) During the Employment Period, the
Company shall pay Executive a Base
Salary at a rate of three hundred thousand
dollars ($300,000.00) per annum,
payable in equal monthly installments less
withholding as required by law. The
Base Salary will be reviewed by, and shall
be subject to increase at the
discretion of the Board or the Compensation
Committee of the Board in accordance
with the Company's then-current policy for
reviewing the salaries of its
executive employees. Upon termination of
the Employment Period, the Base Salary
for any partial year shall be prorated
based on the number of days elapsed in
such year during which the Employment
Period continued.
(b) Executive shall be eligible to
receive an incentive bonus of up to
fifty percent (50%) of Base Salary upon the
attainment of certain goals and
objectives as established and determined by
the Company's CEO.
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3. BENEFITS, OPTIONS, TAXES AND
WITHHOLDING.
(a) BENEFITS. In addition to the Base
Salary payable to Executive
hereunder, Executive shall be entitled to
(i) an automobile allowance of One
Thousand Dollars ($1,000.00) per month and
(ii) such benefits as are, from time
to time, afforded to other executives of
the Company who hold a position
comparable to Executive, which may be
revised, removed or altered by the Board
with respect to all similarly situated
executives of the Company. By way of
example, such benefits generally
include:
(1) hospitalization,
disability, life, health and dental insurance in
amounts
consistent with Company policy for all key management employees,
as
reasonably
determined by the Board;
(2) up to five (5)
weeks paid vacation each year with salary,
consistent with
Company policy for all senior executive employees and
provided that
unused vacation time shall not be carried over to subsequent
years;
(3) reimbursement for
reasonable, ordinary and necessary
out-of-pocket
business expenses incurred by Executive in the performance of
its duties,
subject to the Company's policies in effect from time to time
with respect to
travel, entertainment and other expenses, including without
limitation,
requirements with respect to reporting and documentation of
such
expenses;
(4) other benefit
arrangements, including a 401(k) or similar tax
deferral plan,
to the extent made generally available by the Company to its
executives and
key management employees.
(b) Options. Subject to approval by
either the Board or the Compensation
Committee of the Board in their sole and
absolute discretion, EXECUTIVE SHALL BE
ELIGIBLE TO RECEIVE, under and in
accordance with the Company's 2001 Stock
Option Plan, an option to purchase 100,000
Class-A and 100,000 Class-B shares of
the common stock of the Company at $5.00
per share. Such shares shall, if
approved, BE EFFECTIVE UPON THE DATE
GRANTED AND APPROVED BY THE BOARD OR THE
COMPENSATION COMMITTEE OF THE BOARD, AND
SHALL vest in accordance with, and be
subject to all the terms and conditions of,
the 2001 Stock Option Plan and the
Stock Option Agreement which Executive will
be required to execute in accordance
therewith.
(c) TAXES AND WITHHOLDING. All
compensation payable to Executive hereunder
is stated in gross amount and shall be
subject to all applicable withholding
taxes, other normal payroll and any other
amounts required by law to be
withheld.
4. CONFIDENTIAL INFORMATION.
Executive acknowledges that: (a) he has been
involved with developing and implementing,
and has had total access to,
information relating to marketing
strategies, customer lists, customer
preferences, and other trade secrets and
other confidential and proprietary
information of Schultz Company, including
without limitation marketing,
information systems and records, business
plans and strategies, and customer
data and information, and that all such
information and the information,
observations and data relating to the
Company and its subsidiaries which
Executive has obtained and shall obtain
during the course of his employment with
the Company and its subsidiaries and its
performance under this Agreement
(whether or not such information is or was
developed by Executive)
(collectively, "Confidential Information")
are the property of the Company and
its subsidiaries; (b) the period and nature
of the restrictions contained in
Paragraphs 4 and 5 of this Agreement are
reasonable and necessary to protect the
legitimate interests of Company; (c) such
restrictions do not and will not
unreasonably impair Executive's ability to
financially maintain a standard of
living that is acceptable to him; (d)
Company will suffer loss, damage and
irreparable harm and injury if Executive
fails to observe any of the
restrictions described in Paragraphs 4 or 5
and in any such case Company will be
without an adequate remedy at law; (e)
Company has a legitimate business
interest in protecting the foregoing, which
constitute trade secrets, valuable
confidential business information even if
not qualifying as a trade secret,
substantial relationships with prospective
and existing customers, sources of
business and relationships and customer
goodwill associated with their ongoing
business; and (f) by reason of the
foregoing, if Executive fails to observe any
covenant or restriction described and
set
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forth in Paragraphs 4 or 5 of this
Agreement Company may, in addition to
pursuing any other right or remedy
available to them, seek injunctive relief
against Executive. Executive agrees that he
shall not use for his own purposes
or disclose to any third party any
Confidential Information without the prior
written consent of the Company's CEO or the
Board, unless and to the extent that
the aforementioned matters become generally
known to and available for use by
the public other than as a result of
Executive's or Company management's acts or
omissions. Executive further agrees to take
all appropriate steps (and to cause
its affiliates to take all appropriate
steps) to protect such Confidential
Information against disclosure, misuse,
espionage, loss and theft. In the event
Executive or its affiliates is required by
law to disclose any such Confidential
Information, Executive or such affiliate,
as the case may be, shall promptly
notify the Company's CEO and Board in
writing, which notification shall include
the nature of the legal requirement and the
extent of the required disclosure,
and shall cooperate with the Company to
preserve the confidentiality of such
information consistent with applicable law.
Executive shall deliver to the
Company at the end of the Employment
Period, or at any other time the Company
may request, all memoranda, notes, plans,
records, reports, computer tapes,
printouts and software and other
documentation (and copies thereof) relating to
the business of the Company and its
subsidiaries which Executive may then
possess or have under his control.
Executive acknowledges that all inventions,
innovations, improvements, developments,
methods, designs, analyses, drawings,
reports and all similar or related
information (whether patentable or not) which
relate to the Acquired Assets or the actual
or anticipated business, research
and development or existing or future
products or services of the Company and
its subsidiaries and which are conceived,
developed or made by him during the
Employment Period and at the direction of
the Company ("Work Product") belong to
the Company. Executive shall promptly
disclose such Work Product to the CEO and
the Board and perform all actions
reasonably requested by the CEO and the Board
(whether during or after the Employment
Period) to establish and confirm such
ownership (including, without limitation,
assignments, powers of attorney and
other instruments).
5. NON-COMPETITION. Executive
acknowledges that Executive is familiar
with the trade secrets and other
Confidential Information of the Company and its
subsidiaries. Executive further
acknowledges that his services have been of
special, unique and extraordinary value to
the Company and its subsidiaries,
that Executive has been substantially
responsible for the growth and development
of the Company and its subsidiaries and the
creation and preservation of the
Company and its subsidiaries' goodwill.
Executive acknowledges and agrees that
the Company would be irreparably damaged if
Executive were to provide services
to any person or entity competing with the
Company in violation of this
paragraph 5 and that such competition by
Executive, person or entity would
result in a significant loss of goodwill by
the Company. Executive further
acknowledges and agrees that the covenants
and agreements set forth in this
paragraph 5 were a material inducement to
the Company to enter into this
Agreement and the Merger Agreement and to
perform its obligations hereunder and
thereunder, and that the Company would not
obtain the benefit of the bargain set
forth in this Agreement and the Merger
Agreement as specifically negotiated by
the Parties if Executive breached the
provisions of this paragraph 5. Therefore,
in further consideration for the payment of
the compensation to be paid to
Executive hereunder,
