Exhibit
10.3
NON-COMPETITION
AND NON-DISCLOSURE AGREEMENT
THIS
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
(“Agreement”) is made as of the ___ day of
__________________, 2005, by and between ENERGIZER HOLDINGS,
INC., (hereinafter referred to as “ENERGIZER” and
as defined in Paragraph 11) and J. PATRICK MULCAHY
(hereinafter referred to as “MR.
MULCAHY”).
WHEREAS,
MR. MULCAHY is an employee of ENERGIZER in a key leadership
and strategic position;
WHEREAS,
ENERGIZER and MR. MULCAHY acknowledge that, in MR.
MULCAHY’s capacity as an employee of ENERGIZER, MR.
MULCAHY did contribute to and/or receive Confidential
Information, and MR. MULCAHY acknowledges that ENERGIZER will
suffer irreparable harm if MR. MULCAHY, after having developed
and/or created and/or becoming familiar with any such
Confidential Information, makes any unauthorized disclosure or
communication of such Confidential Information to any third
party or makes any use of such Confidential Information
wrongfully or in competition with ENERGIZER;
WHEREAS,
MR. MULCAHY has indicated his interest in retiring;
and
WHEREAS,
ENERGIZER desires to receive from MR. MULCAHY a covenant not
to engage (either directly or indirectly) in competition with,
or to solicit any client or account of, ENERGIZER;
and
WHEREAS,
ENERGIZER desires to receive from MR. MULCAHY a covenant not
to disclose certain information relating to ENERGIZER’s
business; and
WHEREAS,
ENERGIZER and MR. MULCAHY desire to confirm the terms and
conditions of their agreements and
understandings.
NOW,
THEREFORE, in consideration of the foregoing, the mutual
promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and the parties hereto agree as
follows:
1.
Covenants
Not to Compete or Disclose. MR. MULCAHY acknowledges that the
services rendered to ENERGIZER in the aforesaid capacity 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. MR. MULCAHY agrees that by virtue of his employment, he has
gained a special and unique understanding of ENERGIZER’s
business in the formulation, processing, manufacturing, sale, and
marketing of ENERGIZER’s battery and battery related products
and ENERGIZER’s wet-shave products, as well as other products
formulated, processed, manufactured, sold, or marketed by ENERGIZER
during the tenure of MR. MULCAHY’s employment. MR. MULCAHY at
all times recognizes and respects the advantageous business
relationship which exists between ENERGIZER and present and
potential customers who have been made aware of the products and
services of ENERGIZER. MR. MULCAHY makes the covenants contained in
this Agreement in view of (i) the unique value of the services of
MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the
Confidential Information obtained by or disclosed to MR. MULCAHY as
an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to
provide MR. MULCAHY with consideration as provided
herein.
2.
Non-Competition.
a.
MR.
MULCAHY agrees that for a period of five (5) years after
termination of MR. MULCAHY’s employment --
i.e.,
from
January 25, 2005 through January 25, 2010 -- (“the
Non-Compete Period”), MR. MULCAHY will not compete
against ENERGIZER in ENERGIZER business.
b.
For
purposes of this Agreement, “ENERGIZER business”
shall mean any of the following business activities: all
aspects of manufacturing, marketing, distributing, consulting
with regard to, and/or operating a facility for the
manufacturing, processing, marketing, or distribution of
batteries, lighting products, rechargeable batteries, related
battery and lighting products, and wet-shave 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 MR. MULCAHY’s employment
terminates.
c.
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 ENERGIZER
business.
d.
This
Agreement does not preclude MR. MULCAHY 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 MR. MULCAHY may not use Confidential
Information to engage in, or induce others to engage in,
insider trading as prohibited by federal and state securities
laws.
MR. MULCAHY
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 MR. MULCAHY had access
during his employment, and (iv) MR. MULCAHY’s background and
qualifications are such that the restrictions will not impose an
undue hardship on MR. MULCAHY nor unreasonably interfere with MR.
MULCAHY’s 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.
3.
Non-Solicitation.
For the
duration of the Non-Compete Period, MR. MULCAHY 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 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.
4.
Confidentiality
of Information.
MR.
MULCAHY acknowledges that the information, observations and
data relating to the formulation, processing, manufacturing,
sale and marketing of ENERGIZER's batteries, battery related
products, and wet-shave products obtained by MR. MULCAHY
during the course of MR. MULCAHY’s employment with
ENERGIZER (the "Confidential Information") are confidential
and the exclusive property of ENERGIZER. MR. MULCAHY
agr
