Exhibit 10.(b)
Zep Inc.
SEPARATION
AGREEMENT
THIS AGREEMENT
(the “Agreement”), made
and entered into as of this 15th day of January, 2009, by and
between Zep Inc., a Delaware corporation (the
“Company”), and William A. Holl (the
“Executive”).
WITNESSETH:
WHEREAS , Executive is a valued senior employee of the
Company; and
WHEREAS , Executive wishes to retire from service with
the Company; and
WHEREAS , the Company wishes to ensure that Executive
will assist in the transition of his job responsibilities in order
to minimize the business disruption to the Company stemming from
his resignation and to establish Executives post-employment
obligations to the Company, and the Company is prepared to provide
Executive with certain benefits in consideration for these
commitments; and
WHEREAS , the Company and Executive have determined that
it is in their mutual best interests to enter into this
Agreement;
NOW, THEREFORE
, the parties hereby agree as
follows:
Unless earlier terminated as
hereinafter provided, this Agreement shall commence on the date
hereof and shall expire automatically upon the date when all
benefits due to Executive as set forth herein have been provided by
the Company; provided, however, that certain provisions hereof
shall survive any expiration or termination of this Agreement, to
the extent set forth herein. As of the date hereof, this Agreement
is intended to, and shall, supersede and replace in its entirety
any prior severance agreement and the severance obligations
contained in any employment letter agreement between Executive and
the Company (or a predecessor to the Company).
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2.
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DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings specified below:
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2.1 “ Company ”.
Zep Inc., a Delaware corporation, or any successor to its business
and/or assets.
2.2 “ Date of
Resignation ”. The agreed date of Executive’s
resignation from service with the Company, January 15,
2009.
2.3 “ Section 409A
”. Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations and rulings thereunder.
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Executive’s Initials:
WAH
(Provided for each page that
follows)
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2.4 “ Separation Period
”. The period from Executive’s Date of Resignation
through March 15, 2010.
This Agreement provides for the
payment of compensation and benefits to Executive upon the event of
his resignation from the Company. The Executive will be fully bound
by all of the terms and conditions of this Agreement. Except as
provided in the preceding sentences, the separation pay and
benefits provided for in Section 4 herein shall be in lieu of
any other severance pay to which the Executive may be entitled
under any Company severance plan, program or arrangement for a
termination or resignation of employment arguably covered by such
circumstances.
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4.
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BENEFITS
UPON RESIGNATION
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Upon Executive’s resignation
from the Company, he shall be entitled to the compensation and
benefits described below, provided that Executive executes a valid
General Release as set forth in Section 4.7 and Exhibit A
hereto. Separation payments shall be payable ratably according to
the Executive’s regular payroll period following the Date of
Resignation, beginning upon the first payroll date following
receipt by the Company of Executive’s General Release and the
expiration of the applicable revocation period thereafter, and
continuing through March 15, 2010; provided that in no event
shall separation payments (other than distributions pursuant to the
Company’s Supplemental Deferred Savings Plan) be made later
than March 15, 2010, in order to ensure the applicability of
the short term deferral exception of Section 409A.
4.1 Base Salary . Executive
shall receive an amount equivalent to eighteen (18) months of
his base salary (subject to withholding of all applicable taxes),
to be paid ratably for the entire Separation Period (as defined in
Section 2.4 above), payable in the same manner as it was being
paid on his Date of Resignation.
4.2 Annual Bonus . Executive
shall be paid a bonus in an amount equal to the greater of
(i) the annual incentive bonus that would be paid or payable
to Executive for the fiscal year of the Company during which
Executive’s Date of Resignation occurs under the
Company’s annual incentive plan (“Incentive
Plan”), assuming the target level(s) of performance had been
met for such fiscal year, multiplied by a fraction (the “Pro
Rata Fraction”), the numerator of which is the number of days
that have elapsed in the then current fiscal year through
Executive’s Date of Resignation and the denominator of which
is 365, or (ii) the annual incentive bonus that would be paid
or payable to Executive for the fiscal year of the Company during
which Executive’s Date of Resignation occurs under the
Incentive Plan based upon the Company’s actual performance
for such fiscal year, multiplied by the Pro Rata Factor. The bonus
amount determined pursuant to Section 4.2(i) shall be paid to
Executive as early as ten (10) days following
Executive’s Date of Resignation, or upon receipt by the
Company of Executive’s General Release and the expiration of
the applicable revocation period, whichever is later, and any
additional amount payable pursuant to Section 4.2(ii) shall be
payable at the same time as bonuses are payable to other executives
under the Incentive Plan.
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Executive’s Initials:
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4.3 Restricted Stock . Any
Restricted Stock granted to Executive under the Zep Inc. Long-Term
Incentive Plan (“LTIP”) or any predecessor plan for
which the specific performance targets have been achieved and a
Vesting Start Date (as defined in the agreement granting the
Restricted Stock to Executive, the “Restricted Stock
Agreement”) has been established as of Executive’s Date
of Resignation shall become fully vested and nonforfeitable as of
Executive’s Date of Resignation and, subject to the proviso
at the end of this sentence, all Restricted Stock for which a
Vesting Start Date has not been established shall be immediately
forfeited; provided, that if the Restricted Stock Agreement
granting the Restricted Stock to Executive provides for more
favorable continued vesting after Executive’s Date of
Resignation, the provisions of such Restricted Stock Agreement
shall apply to the vesting of Executive’s Restricted Stock
after the Date of Resignation. The Vested Value (as defined in the
Restricted Stock Agreement) of the shares of Restricted Stock
vesting pursuant to this Section 4.3 shall be delivered to
Executive in the manner provided in Section 2.2 of the
Restricted Stock Agreement as early as ten (10) days following
Executive’s Date of Resignation, using Executive’s Date
of Resignation as the date for determining the Vested Value, or
upon receipt by the Company of Executive’s General Release
and the expiration of the applicable revocation period, whichever
is later. This Section 4.3 does not apply to Restricted Stock
that only contains time-based vesting.
4.4 Health Care and Life
Insurance . The health care (including dental and vision
coverage, if applicable) and term life insurance coverages provided
to Executive at his Date of Resignation shall be continued at the
same level as for active executives and in the same manner as if he
had not resigned his employment with the Company, beginning on the
Date of Resignation and ending on the last day of the Separation
Period. Any additional coverages Executive had upon his Date of
Resignation, including dependent coverage, will also be continued
for such period on the same terms, to the extent permitted by the
applicable policies or contracts. Any costs Executive was paying
for such coverages at the time of his resignation shall be paid by
Executive by separate check payable to the Company each month in
advance or, at Executive’s election, may be deducted from his
base salary payments under Section 4.1. If the terms of the
life insurance plan referred to in this Section 4.4, or the
laws applicable to such plan, do not permit continued participation
by Executive as required by this subsection, then the Company will
arrange for other coverage satisfactory to Executive at the
Company’s expense providing substantially identical benefits
or, at the Company’s election, the Company will pay Executive
an amount each month during the Separation Period equal to the
costs to Executive for the coverage.
If the terms of the health care plan
referred to in this Section 4.4 do not permit continued
participation by Executive as required by this subsection, or if
the healthcare benefits to be provided to Executive and his
dependents pursuant to this Section 4.4 cannot be provided in
a manner such that the benefit payments will be tax-free to
Executive and his dependents, then the Company shall (A) pay
to Executive each month during the Separation Period after
Executive’s Date of Resignation an amount equal to the
monthly rate for COBRA (as defined below) coverage under the
healthcare plan that is then being paid by former active employees
for the level of coverage that applies to Executive and his
dependents, minus the amount active employees are then paying for
such coverage, and (B) permit Executive and his dependents to
elect to participate in the healthcare plan for the Separation
Period upon payment of the applicable rate for COBRA coverage
during the Separation Period. A benefit provided under
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Executive’s Initials:
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this Section 4.4 shall cease if Executive
obtains other employment and, as a result of such employment,
health care or life insurance benefits are available to Executive.
This continued coverage shall run concurrent with any continuation
coverage period available to the Executive under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”). At the end of the Separation Period, the
Executive and/or his qualified beneficiaries shall be solely
responsible for the payment of the applicable premium for any
remaining period of COBRA continuation coverage.
4.5 Outplacement Services .
Company will pay Executive a one-time cash payment in an amount
equal to ten percent (10%) of Executive’s base salary to
cover the cost of any outplacement services Executive may elect to
retain, such payment to be made at the same time as the bonus
amount described in Section 4.2(i) above.
4.6 Other Benefits . Except
as expressly provided herein, all other fringe benefits provided to
Executive as an active employee of the Company shall cease on his
Date of Resignation, provided that any conversion or extension
rights applicable to such benefits shall be made available to
Executive at his Date of Resignation or when such coverages
otherwise cease at the end of the Separation Period. Except as
expressly provided herein, for all other plans sponsored by the
Company, the Executive’s employment shall be treated as
terminated on his Date of Resignation, and Executive’s right
to benefits shall be determined under the terms of such plans;
provided, however, in no event will Executive be entitled to
severance payments or benefits under any other severance plan,
policy, program or agreement of the Company.
4.7 Release of Claims . To be
entitled to any of the compensation and benefits described above in
this Section 4, Executive shall sign the General Release
attached hereto as Exhibit A. No payments shall be made under this
Section 4 until such release has been properly executed and
delivered to the Company and until the expiration of the revocation
period, if any, provided under the release. If the release is not
properly executed by the Executive and delivered to the Company
within the reasonable time periods specified in the release, the
Company’s obligations under this Section 4 will
terminate.
4.8 Nothing in this Agreement is
intended to provide for the deferral of compensation within the
meaning of Code Section 409A. All payments hereunder are
intended to satisfy the separation pay provisions of Treas. Reg.
§1.409A-1(b)(9), as may be amended.
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5.
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CONFIDENTIALITY, NON-SOLICITATION AND
NON-COMPETITION
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5.1 Purpose and Reasonableness of
Provisions . Executive acknowledges that during the term of
this employment with the Company through and including the Date of
Resignation, the Company has furnished to Executive Confidential
Information and Trade Secrets (as defined in Sections 5.11(a) and
5.11(b) respectively) which could be used by a competitor of the
Company to the Company’s substantial detriment. Moreover, the
parties recognize that Executive, during the course of his
employment with the Company, has developed important relationships
with customers and others having valuable business relationships
with the Company. In view of the foregoing, Executive acknowledges
and agrees that the restrictive covenants contained in this
Section 5 are reasonably necessary to protect the
Company’s legitimate business interests and good
will.
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Executive’s Initials:
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5.2 Proprietary Rights . All
Confidential Information, Trade Secrets, and all physical and
electronic embodiments thereof are confidential and are and will
remain the sole and exclusive property of the Company. The
Executive agrees that any copyright in the expression of such
Confidential Information or Trade Secrets shall be the property of
the Company, and that any patent rights and any invention or novel
devices or processes developed by the use of such Confidential
Information or Trade Secrets shall be the exclusive property of the
Company.
5.3 Trade Secrets and
Confidential Information . During the term of employment and
for a period of (i) four (4) years thereafter for
Confidential Information that is not a trade secret under Georgia
law, or (ii) until the Confidential Information that is a
trade secret under Georgia law ceases to qualify as such, Executive
agrees that he shall protect any such Confidential Information and
shall not, except in connection with the performance of his
remaining duties for the Company, disclose or otherwise copy,
reproduce, use, distribute or otherwise disseminate any such
Confidential Information, or any physical embodiments thereof, to
any person or entity. Executive further agrees that he shall not,
except in connection with the performance of his remaining duties
for the Company, disclose or otherwise copy, reproduce, distribute
or otherwise disseminate any Trade Secrets, or any physical
embodiments thereof, to any person or entity. Executive will, in no
event, take any action causing, or fail to take any action
necessary in order to prevent any Confidential Information or Trade
Secrets disclosed to or developed by Executive to lose their
character as such; provided, however, that Executive may make
disclosures required by a valid order or subpoena issued by a court
or administrative agency of competent jurisdiction, in which event
Executive will promptly notify the Company of such order or
subpoena to provide the Company an opportunity to protect its
interests. Executive’s obligations under this
Section 5.3 shall survive any expiration or termination of
this Agreement, provided that Executive may after such expiration
or termination disclose Confidential Information or Trade Secrets
with the prior written consent of the Chief Executive
Officer.
The Executive attests that, during
his employment with the Company, he has not and will not offer,
disclose or use on Executive’s own behalf or on behalf of the
Company, any information Executive received prior to employment by
the Company, which was supplied to Executive confidentially or
which Executive should reasonably know to be confidential, to any
person, organization or entity other than the Company without the
written approval of such person, organization or entity.
Nothing contained herein shall be in
derogation or a limitation of the rights of the Company to enforce
its rights or the duties of Executive under then applicable Georgia
law relating to Trade Secrets including, in particular, the Georgia
Trade Secrets Act, O.C.G.A. Sections 10-1-760, et seq
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5.4 Return of Confidential
Information and Trade Secrets; Return of Property . Upon
request by the Company and, in any event, upon Executive’s
Date of Resignation, Executive will promptly deliver to the Company
all property belonging to the Company, including but without
limitation, all Confidential Information and Trade Secrets and all
embodiments thereof, all Company files, customer lists, management
reports, memoranda, research, Company forms, financial data and
reports and other documents (including all such
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Executive’s Initials:
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data and documents in electronic
form) supplied to or created by him in connection with his
employment hereunder (including all copies of the foregoing) in his
possession or control, and all of the Company’s equipment and
other materials in his possession or control. Executive’s
obligations under this Section 5.4 shall survive any
expiration or termination of this Agreement.
5.5 Inventions . The
Executive does hereby assign to the Company the entire right, title
and interest in any Invention (as defined in Section 5.11(d)
below) which is made, conceived, either solely or jointly with
others, during his employment with the Company. The Executive
agrees promptly to disclose to the Company all such Inventions. The
Executive will, if requested, promptly execute and deliver to the
Company a specific assignment of title for an Invention and will,
at the expense of the Company, take all reasonably required action
by the Company to patent, copyright or otherwise protect the
Invention.
5.6 Non-Competition . The
Executive agrees that, while employed by the Company and for a
period equal to eighteen (18) months following the Date of
Resignation (the “Restricted Period”), Executive shall
comply with the non-competition restrictions attached hereto as
Exhibit B.
5.7 Non-Solicitation of
Customers/Suppliers . The Executive agrees that, during the
course of his employment with the Company, and for a period equal
to the Restricted Period thereafter, the Executive will not
directly or indirectly (i) divert or attempt to divert any
person, concern or entity which is furnished products or services
by the Company from doing business with the Company or otherwise
change its relationship with the Company; or (ii) induce or
attempt to induce any customer, supplier or service provider to
cease being a customer, supplier or service provider of the Company
or to otherwise change its relationship with the
Company.
5.8 Non-Solicitation of
Employees . The Executive agrees that, during the course of
employment with the Company, and for a period equal to the
Restricted Period thereafter, the Executive shall not, directly or
indirectly, whether on behalf of the Executive or others, solicit,
lure or attempt to solicit or lure away from employment by the
Company any person employed by the Company. The provision of this
paragraph shall only apply to those persons employed by the Company
at the time of solicitation or attempted solicitation.
5.9 Injunctive Relief .
Executive acknowledges that if he breaches or threatens to breach
any of the provisions of this Section 5, his actions may cause
irreparable harm and damage to the Company which could not be
compensated by damages alone. Accordingly, if Executive breaches or
threatens to breach any of the provisions of this Section 5,
the Company shall be entitled to seek injunctive relief, in
addition to any other rights or remedies the Company may have.
Executive hereby waives the requirement for a bond or other
security by the Company as a condition to seeking injunctive
relief. The existence of any claim or cause of action by Executive
against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of Executive’s agreements under this
Section 5.
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Executive’s Initials:
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5.10 Provisions Severable .
If any provision in this Section 5 is determined to be in
violation of any law, rule or regulation or otherwise
unenforceable, and cannot be modified to be enforceable, such
determination shall not affect the validity of any other provisions
of this Agreement, but such other provisions shall remain in full
force and effect. Each and every provision, paragraph and
subparagraph of this Section 5 is severable from the other
provisions, paragraphs and subparagraphs and constitutes a separate
and distinct covenant.
5.11 Definitions . For
purposes of this Section 5, the following definitions shall
apply:
a. “Confidential
Information” means:
(i) information relating to the
Company’s Business (as defined in Exhibit B hereto)
(A) which Executive develops, helps develop in conjunction
with others, creates, or becomes aware as a consequence of or
through Executive’s employment with the Company or any other
arrangement or relationship with the Company; (B) which has
value to the Company, actual or potential, from not being generally
known by others who can obtain economic value from its disclosure
or use (whether or not such material or information is marked
“confidential”). For purposes of this Agreement,
subject to the foregoing, and according to terminology commonly
used by the Company, the Company’s Confidential Information
shall include, but not be limited to, information pertaining to:
(1) Business Opportunities (as defined below); (2) data
and compilations of data relating to the Company’s Business;
(3) compilations of information about, and communications and
agreements with, customers and potential customers of the Company;
(4) computer software, hardware, network and internet
technology utilized, modified or enhanced by the Company or by
Executive in furtherance of Executive’s duties with the
Company; (5) compilations of data concerning Company products,
services, customers, and end users including but not limited to
co