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Exhibit
10.18
ZEP INC.
SEVERANCE
AGREEMENT
THIS AGREEMENT (the
“Agreement”), made and entered into as of this
day of
, 2007, by and between ZEP INC., a Delaware corporation (the
“Company”), and
(the “Executive”).
WITNESSETH:
WHEREAS , Executive is
a key employee of the Company and an integral part of the
Company’s management; and
WHEREAS , the Company
desires to provide the Executive with certain benefits if the
Executive’s employment is terminated involuntarily under
certain circumstances; and
WHEREAS , the Company
and the Executive have determined 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 be for a rolling, two-year term (the
“Term”) and shall be deemed to extend automatically,
without further action by either the Company or Executive, each day
for an additional day, such that the remaining term of the
Agreement shall continue to be two years; provided, however, that
either party may, by written notice to the other, cause this
Agreement to cease to extend automatically and, upon such notice,
the “Term” of this Agreement shall be the two-year
period following the date of such notice and this Agreement shall
terminate upon the expiration of such Term; provided, further, that
in the event of a Change in Control (as defined in Section 2.3
below), the Term of this Agreement shall not expire prior to the
expiration of three (3) years after the occurrence of a Change
in Control. This Agreement shall not be considered an employment
agreement and in no way guarantees Executive the right to continue
in the employment of the Company or its affiliates.
Executive’s employment is considered employment at will,
subject to Executive’s right to receive payments and benefits
upon certain terminations of employment as provided
below.
As of the date hereof, this
Agreement is intended to, and shall, supersede and replace in its
entirety the severance agreement, dated as of
, 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. |
DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings specified
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2.1 “ Board
” or “ Board of Directors ”. The Board of
Directors of Zep Inc., or its successor.
2.2 “ Cause
”. The involuntary termination of Executive by the Company
for the following reasons shall constitute a termination for
Cause:
a. If termination shall have
been the result of an act or acts by the Executive which have been
found in an applicable court of law to constitute a felony (other
than traffic-related offenses);
b. If termination shall have
been the result of an act or acts by the Executive which are in the
good faith judgment of the Company to be in violation of law or of
written policies of the Company and which result in material injury
to the Company;
c. If termination shall have
been the result of an act or acts of dishonesty by the Executive
resulting or intended to result directly or indirectly in gain or
personal enrichment to the Executive at the expense of the Company;
or
d. Upon the continued failure
by the Executive substantially to perform the duties reasonably
assigned to Executive given Executive’s training and
experience (other than any such failure resulting from incapacity
due to mental or physical illness not constituting a Disability, as
defined herein), after a demand in writing for substantial
performance of such duties is delivered by the Company, which
demand specifically identifies the manner in which the Company
believes that the Executive has not substantially performed his
duties, and such failure results in material injury to the
Company.
If Executive’s
employment is terminated for any reason, the supervising executive
to whom Executive directly reports (the “Supervising
Executive”) shall make an initial determination whether or
not the termination was for Cause. If the Supervising Executive
determines that the termination was for Cause, then, within ten
(10) days of such termination, the Company shall provide
written notice to the Executive indicating that the termination was
for Cause and noting that benefits will not be made available to
the Executive pursuant to this Agreement.
2.3 “ Change in
Control ”. For purposes of this Agreement, a
“Change in Control” shall mean any of the following
events:
a. The acquisition (other
than from the Company in an acquisition that is approved by the
Incumbent Board, as defined herein) by any “Person” (as
the term person is used for purposes of Sections 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the “1934
Act”), of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the 1934 Act) of twenty percent
(20%) or more of the combined voting power of the
Company’s then outstanding voting securities; or
b. The individuals who, as of
October 31, 2007, are members of the Board (the
“Incumbent Board”), cease for any reason to constitute
at least two-thirds of the Board; provided, however, that if the
election, or nomination for election by the Company’s
stockholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall,
for purposes of this Agreement, be considered as a member of the
Incumbent Board; or
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c. Consummation of a merger
or consolidation involving the Company if the stockholders of the
Company, immediately before such merger or consolidation do not, as
a result of such merger or consolidation, own, directly or
indirectly, more than sixty percent (60%) of the combined
voting power of the then outstanding voting securities of the
corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the
combined voting power of the voting securities of the Company
outstanding immediately before such merger or consolidation;
or
d. Consummation of a complete
liquidation or dissolution of the Company or of the sale or other
disposition of all or substantially all of the assets of the
Company.
Notwithstanding the
foregoing, a Change in Control shall not be deemed to occur
pursuant to Section 2.3, solely because twenty percent
(20%) or more of the combined voting power of the
Company’s then outstanding securities is acquired by
(i) a trustee or other fiduciary holding securities under one
or more employee benefit plans maintained by the Company or any of
its subsidiaries or (ii) any corporation which, immediately
prior to such acquisition, is owned directly or indirectly by the
stockholders of the Company in the same proportion as their
ownership of stock in the Company immediately prior to such
acquisition.
2.4 “ Change in
Control Agreement ”. An agreement between Executive and
the Company providing for the payment of compensation and benefits
to Executive in the event of Executive’s termination of
employment under certain circumstances following a “change in
control” of the Company (as defined in such
agreement).
2.5 “ Company
”. Zep Inc., a Delaware corporation, or any successor to its
business and/or assets.
2.6 “ Date of
Termination ”. The date specified in the Notice of
Termination (which may be immediate) as the date upon which the
Executive’s employment with the Company is to
cease.
2.7 “ Disability
”. Disability shall have the meaning ascribed to such term in
the Company’s long-term disability plan covering the
Executive, or in the absence of such plan, a meaning consistent
with Section 22(e)(3) of the Code. The determination of
Disability shall be made by the Company in a manner consistent with
the requirements of Section 409A.
2.8 “ Good
Reason ”. A “Good Reason” for termination by
Executive of Executive’s employment with the Company shall
mean the occurrence during the Term after the occurrence of a
Change in Control, without Executive’s express consent, of
any of the following acts by the Company, or failures by the
Company to act, and such act or failure to act has not been
corrected within thirty (30) days after written notice of such
act, or failure to act, is given by Executive to the
Company:
a. an adverse change in
Executive’s title or position in the Company from
Executive’s title or position immediately prior to the Change
in Control which represents a demotion;
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b. the Company’s
requiring Executive to be based more than 50 miles from the primary
workplace where Executive is based immediately prior to the Change
in Control, except for reasonably required travel on the
Company’s business which is not significantly greater than
such travel requirements prior to the Change in Control;
c. a reduction in base salary
and target bonus opportunity (not the bonus actually earned) below
the level in effect immediately prior to the Change in Control,
unless such reduction is consistent with reductions being made at
the same time for other officers of the Company in comparable
positions;
d. a material reduction in
the aggregate benefits provided to Executive by the Company under
its “employee benefits plans,” as defined in
Section 3(3) of ERISA, immediately prior to the Change in
Control, except in connection with a reduction in such benefits
which is consistent with reductions being made at the same time for
other officers of the Company in comparable positions;
e. an insolvency or
bankruptcy filing by the Company; or
f. a material breach by the
Company of this Agreement.
2.9 “ Notice of
Termination ”. A written notice from one party to the
other party specifying the Date of Termination and which sets forth
in reasonable detail the facts and circumstances relating to the
basis for termination of Executive’s employment.
2.10 “ Section
409A ”. Section 409A of the Internal Revenue Code of
1986, as amended, and the regulations and rulings
thereunder.
2.11 “ Severance
Period ”. A period equal to the lesser of (i)
months from the Executive’s Date of Termination or
(ii) the number of months (rounded to the nearest month) from
the Executive’s Date of Termination until the date he attains
age 65.
This Agreement provides for
the payment of compensation and benefits to Executive in the event
his employment (i) is involuntarily terminated by the Company
without Cause, or (ii) is terminated by Executive for Good
Reason. If Executive is terminated by the Company for Cause, dies,
incurs a Disability or voluntarily terminates employment (other
than for Good Reason), this Agreement shall terminate, and
Executive shall be entitled to no payments of compensation or
benefits pursuant to the terms of this Agreement; provided that in
such events, Executive will be entitled to whatever benefits are
payable pursuant to the terms of any health, life insurance,
disability, welfare, retirement, deferred compensation, or other
plan or program maintained by the Company.
If, as a result of
Executive’s termination of employment, Executive becomes
entitled to compensation and benefits under this Agreement and
under a Change in Control Agreement, Executive shall be entitled to
receive benefits under whichever agreement provides Executive the
greater aggregate compensation and benefits (and not under the
other agreement) and there shall be no duplication of
benefits.
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4. |
BENEFITS UPON INVOLUNTARY TERMINATION WITHOUT CAUSE BY THE
COMPANY OR FOR GOOD REASON |
If Executive’s
employment is involuntarily terminated by the Company during the
term of this Agreement without Cause (and such termination does not
arise as a result of Executive’s death or Disability), or if
Executive terminates his employment for Good Reason, the Executive
shall be entitled to the compensation and benefits described below,
provided that Executive, as described in Section 4.7, executes
a valid release of claims in such form as may be required by the
Company. In the event Executive is terminated without Cause or
Executive terminates his employment for Good Reason, the Company
may, in its discretion and to provide equitable treatment, grant
benefits to Executive in addition to those provided below in
circumstances where Executive suffers a diminution of projected
benefits as a result of Executive’s termination prior to
attainment of age 65, including without limitation, additional
retirement benefits, provided that any such grant of additional
benefits shall be consistent with the requirements of
Section 409A and no such grant shall be made which would
violate Section 409A and the regulations and rulings
thereunder.
4.1 Base Salary .
Executive shall continue to receive his Base Salary (subject to
withholding of all applicable taxes) for the entire Severance
Period (as defined in Section 2.11 above), payable in the same
manner as it was being paid on his Date of Termination.
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 Termination 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 Termination 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 Termination 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 within ten (10) days of Executive’s Date of
Termination and any additional amount payable pursuant to
Section 4.2(ii) shall be payable at the same time as bonuses
are payable to other executive under the Incentive Plan. In the
event Executive becomes entitled to a bonus under this
Section 4.2 and under the Incentive Plan in connection with a
Change in Control, Executive shall be entitled to receive whichever
bonus amount is greater and Executive shall not receive a duplicate
bonus for the same fiscal year (or portion of a fiscal
year).
4.3 Restricted Stock .
Any Restricted Stock granted to Executive under the Acuity Brands,
Inc. Long-Term Incentive Plan (“LTIP”) 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 Termination shall
become fully vested and nonforfeitable as of Executive’s Date
of Termination and subject to the proviso at the end of this
sentence, all Restricted Stock
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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 Termination, the provisions of such
Restricted Stock Agreement shall apply to the vesting of
Executive’s Restricted Stock after Executive’s
termination. 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
within ten (10) days of Executive’s Date of Termination,
using Executive’s Date of Termination as the date for
determining the Vested Value. 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 Termination shall be continued at the
same level as for active executives and in the same manner as if
his employment had not terminated, beginning on the Date of
Termination and ending on the last day of the Severance Period. Any
additional coverages Executive had at termination, 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 termination 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 Severance 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 Severance Period after
Executive’s Termination Date an amount equal to the monthly
rate for COBRA 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 Severance Period upon
payment of the applicable rate for COBRA coverage during the
Severance Period. A benefit provided under 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. At the end of the Severance Period,
Executive shall be entitled to elect to continue health care
coverage pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended (“COBRA”), for the period
required by COBRA. In the event Executive’s employment is
terminated following a Change in Control under circumstances that
entitle the Executive to benefits under this Section 4.4,
Executive shall be entitled to elect to continued
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