AMENDED CHANGE OF CONTROL EMPLOYMENT AGREEMENT
Exhibit
10.1
AMENDED
CHANGE OF
CONTROL
EMPLOYMENT
AGREEMENT
This
Amended Change
of Control Employment Agreement (the “Amended Agreement”) by and between
Energizer Holdings, Inc. (the “Company”), a Missouri corporation, and ________
(“Executive”),
WITNESSETH:
WHEREAS,
the
Company, on behalf of itself, its subsidiaries and its stockholders, and any
successor or surviving entity, wishes to encourage Executive’s continued service
and dedication in the performance of his duties, notwithstanding the
possibility, threat or occurrence of a Change of Control of the Company;
and
WHEREAS,
the Board
of Directors of the Company (the “Board”) believes that the prospect of a
pending or threatened Change of Control inevitably creates distractions and
personal risks and uncertainties for its executives, and that it is in the
best
interests of Company and its stockholders to minimize such distractions to
certain executives, and the Board further believes that it is in the best
interests of the Company to encourage its executives’ full attention and
dedication to their duties, both currently and in the event of any threatened
or
pending Change of Control; and
WHEREAS,
the Board
has determined that appropriate steps should be taken to reinforce and encourage
the continued retention of certain members of the Company’s management,
including Executive, and the attention and dedication of management to their
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change of Control.
NOW,
THEREFORE, in
order to induce Executive to remain in the employ of the Company and in
consideration of his continued service to the Company, the Company agrees that
Executive shall receive the benefits set forth in this Amended Agreement in
the
event that Executive’s employment with the Company is terminated subsequent to a
Change of Control in the circumstances described herein, and the parties further
agree as follows:
I. Definitions.
The
meaning of each defined term that is used
in this Amended Agreement is set forth below.
(a) AAA. The
American Arbitration Association.
(b) Accounting
Firm. The meaning of this term is set forth in Subsection
IV(f)(ii).
(c) Additional
Pay. The meaning of this term is set forth in
Subsection IV(b).
(d) After-Tax
Amount. The meaning of the term is set forth in Subsection
IV(f)(i).
(e) After-Tax
Floor Amount. The meaning of this term is set forth in Subsection
IV(f)(i).
(f) Agreement
Payments. The meaning of this term is set forth in
Subsection IV(f).
(g) Beneficiaries. The
meaning of this term is set forth in Subsection VI(b).
(h) Board. The
meaning of this term is set forth in the second WHEREAS clause of this Amended
Agreement.
(i) Business
Combination. The meaning of this term is set forth in
Subsection I(k)(iii).
(j) Cause. For
purposes of this Amended Agreement, “Cause” shall mean Executive’s willful
breach or failure to perform his/her employment duties. For purposes
of this Subsection I(j), no act, or failure to act, on the part of
Executive shall be deemed “willful” unless done, or omitted to be done, by
Executive not in good faith and without reasonable belief that such action
or
omission was in the best interest of the Company. Notwithstanding the
foregoing, Executive’s employment shall not be treated as having been terminated
for Cause unless the Company delivers to Executive, prior to or at Termination
of Employment, a certificate of a resolution duly adopted by the affirmative
vote of not less than seventy-five percent (75%) of the entire membership of
the
Board at a meeting of the Board called and held for such purpose (after
reasonable notice to Executive and an opportunity for Executive, together with
Executive’s counsel, to be heard before the Board), finding that in the good
faith opinion of the Board, Executive has engaged in such willful conduct and
specifying the details of such willful conduct.
(k) Change
of Control. For purposes of this Amended Agreement, a “Change of
Control” shall be deemed to have occurred if there is a change of control of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act
of
1934, as amended (the “Exchange Act”), whether or not the Company is then
subject to such reporting requirement; provided that, without limitation, such
a
Change of Control shall be deemed to have occurred if:
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(i)
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any
“person”
(as such term is used in Sections 13(d) and 14(d)(2) as currently
in
effect, of the Exchange Act) is or becomes a “beneficial owner” (as
determined for purposes of Regulation 13D-G, as currently in effect,
of
the Exchange Act), directly or indirectly, of securities representing
twenty percent (20%) or more of the total voting power of all of
the
Company’s then outstanding voting securities. For purposes of
this Amended Agreement, the term “person” shall not
include: (A) the Company or any of its Subsidiaries,
(B) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Subsidiaries, or (C) an
underwriter temporarily holding securities pursuant to an offering
of said
securities;
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(ii)
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during
any
period of two (2) consecutive calendar years, individuals who at
the
beginning of such period constitute the Board and any new director(s)
whose election by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning
of such period or whose election or nomination for election was previously
so approved, cease for any reason to constitute a majority of the
Board;
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(iii)
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the
stockholders of the Company approve a merger, consolidation or sale
or
other disposition of all or substantially all of the assets of the
Company
(a “Business Combination”), in each case, unless following such Business
Combination: (i) all or substantially all of the
individuals and entities who were the “beneficial owners” (as determined
for purposes of Regulation 13D-G, as currently in effect, of the
Exchange
Act) of the outstanding voting securities of the Company immediately
prior
to such Business Combination beneficially own, directly or indirectly,
securities representing more than fifty percent (50%) of the total
voting
power of the then outstanding voting securities of the corporation
resulting from such Business Combination or the parent of such corporation
(the “Resulting Corporation”); (ii) no “person” (as such term is used
in Section 13(d) and 14(d)(2), as currently in effect, of the
Exchange Act), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or the Resulting
Corporation, is the “beneficial owner” (as determined for purposes of
Regulation 13D-G, as currently in effect, of the Exchange Act), directly
or indirectly, of voting securities representing twenty percent (20%)
or
more of the total voting power of then outstanding voting securities
of
the Resulting Corporation; and (iii) at least a majority of the
members of the board of directors of the Resulting Corporation were
members of the Board at the time of the execution of the initial
agreement, or at the time of the action of the Board, providing for
such
Business Combination;
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(iv)
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the
stockholders of the Company approve a plan of complete liquidation
or
dissolution of the Company; or
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(v)
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any
other
event that a simple majority of the Board, in its sole discretion,
shall
determine constitutes a Change of
Control.
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(l) Code. For
purposes of this Amended Agreement, “Code” shall mean the Internal Revenue Code
of 1986, as amended.
(m) Company. The
meaning of this term is set forth in the first paragraph of this Amended
Agreement and in Subsection VI(a).
(n) Controlled
Group. For purposes of this Amended Agreement, “Controlled Group”
shall mean any corporation or other business entity that from time to time
is,
along with the Company, a member of a controlled group of businesses, as defined
in section 414(b) and 414(c) of the Code, or a member of an affiliated service
group, as defined in sectin 414(m) of the Code, provided that the language
“at
least 50 percent” shall be used instead of “at least 80 percent” each place it
appears in such test. A corporation or other business entity ceases to be a
member of the Controlled Group when a sale or other disposition causes it to
fall outside the definition of the term Controlled Group.
(o) Disability. For
purposes of this Amended Agreement, “Disability” shall mean an illness, injury
or similar incapacity which 52 weeks after its commencement, continues to render
Executive unable to perform the material and substantial duties of Executive’s
position or any substantially similar occupation or substantially similar
employment for which Executive is qualified or may reasonably become qualified
by training, education or experience. Any question as to the
existence of a Disability upon which Executive and the Company cannot agree
shall be determined by a qualified independent physician selected by Executive
(or, if Executive is unable to make such selection, by any adult member of
Executive’s immediate family or Executive’s legal representative), and approved
by the Company, such approval not to be unreasonably withheld. The
determination of such physician made in writing to both the Company and
Executive shall be final and conclusive for all purposes of this Amended
Agreement.
(p) Employer. For
purposes of this Amended Agreement, “Employer” shall mean the Company or the
Subsidiary, as the case may be, with which Executive has an employment
relationship.
(q) Exchange
Act. This term shall have the meaning set forth in
Subsection I(i).
(r) Executive. This
term shall have the meaning set forth in the first paragraph of this Amended
Agreement.
(s) Excise
Tax. This term shall have the meaning set forth in Subsection
IV(f)(i).
(t) Floor
Amount. This term shall have the meaning set forth in Subsection
IV(f)(i).
(u) Good
Reason. For purposes of this Amended Agreement, “Good Reason” shall
mean the occurrence, without Executive’s prior express written consent, of any
of the following circumstances:
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(i)
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The
assignment to Executive of any duties inconsistent with Executive’s status
or responsibilities as in effect immediately prior to a Change of
Control,
including imposition of travel obligations which differ materially
from
required business travel immediately prior to the Change of
Control;
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(ii)
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(A)
A
reduction in Executive’s annual base salary as in effect immediately
before the Change of Control; or (B) the failure to pay a bonus award
to which Executive is entitled under any short-term incentive plan(s)
or
program(s), any long-term incentive plan(s) or program(s), or any
other
incentive compensation plan(s) or program(s) of Company in which
Executive
participated immediately prior to the time of the Change of
Control;
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(iii)
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A
change in
the principal place of Executive’s employment, as in effect immediately
prior to the Change of Control to a location more than fifty (50)
miles
distant from the location of such principal place at such
time;
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(iv)
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The
failure
by the Company to offer Executive participation in incentive compensation
or stock or stock option plans on at least a substantially equivalent
basis, both in terms of the nature and amount of benefits provided
and the
level of Executive’s participation, as is then being provided by the
Company to similarly situated peer executives of the
Company;
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(v)
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(A)
Except as
required by law, the failure by the Company to offer Executive benefits
on
at least a substantially equivalent basis, in the aggregate, to those
then
being provided by the Company to similarly situated peer executives
of the
Company under the qualified and non-qualified employee benefit and
welfare
plans of the Company, including, without limitation, any pension,
deferred
compensation, life insurance, medical, dental, health and accident,
disability, retirement or savings plan(s) or program(s) offered by
the
Company; (B) the taking of any action by the Company that would,
directly or indirectly, materially reduce or deprive Executive of
any
other perquisite or benefit then being offered by the Company to
similarly
situated peer executives of the Company (including, without limitation,
Company-paid and/or reimbursed club memberships, financial counseling
fees
and the like); or (C) the failure by the Company to treat Executive
under the Company’s vacation policy, past practice or special agreement in
the same manner and to the same extent as then being provided by
the
Company to similarly situated peer executives of the
Company;
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(vi)
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The
failure
of the Company to obtain a satisfactory written agreement from any
successor prior to consummation of the Change of Control to assume
and
agree to perform this Amended Agreement, as contemplated in
Subsection VI(a); or
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(vii)
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Any
purported
Termination of Employment by the Company of Executive that is not
effected
pursuant to a Notice of Termination satisfying the requirements of
Subsection III(d) or, if applicable,
Subsection I(h). For purposes of this Amended Agreement,
no such purported Termination of Employment shall be effective except
as
constituting Good Reason.
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Executive’s
continued employment with the Company or any Subsidiary shall not constitute
a
consent to, or a waiver of rights with respect to, any circumstances
constituting Good Reason hereunder. Any good faith determination of
“Good Reason” made by the Executive shall be conclusive for purposes of this
Amended Agreement.
(v) Gross-Up
Payment. The meaning of this term is set forth in Subsection
IV(f)(i).
(w) Notice
of Termination. The meaning of this term is set forth in
Subsection III(c).
(x) Other
Payments. The meaning of this term is set forth in Subsection
IV(f)(i).
(y) Payments. The
meaning of this term is set forth in Subsection IV(f)(i).
(z) Resulting
Corporation. The meaning of this term is set forth in
Subsection I(k)(iii).
(aa) Retirement. For
purposes of this Amended Agreement, “Retirement” shall mean Executive’s
voluntary Termination of Employment with the Company, other than for Good
Reason, and in accordance with the Company’s retirement policy generally
applicable to its employees or in accordance with any prior or contemporaneous
retirement agreement or arrangement between Executive and the
Company.
(bb) Severance
Bonus Amount. For purposes of this Amended Agreement, “Severance
Bonus Amount” means an amount determined by averaging the percentages of
Executive’s base salary which were actually awarded to Executive as incentive
bonuses under short-term incentive plans of the Company or any of its
Subsidiaries for the five most recently completed fiscal years prior to the
fiscal year in which the Change of Control occurs, and multiplying such average
percentage by the greater of (A) Executive’s annual base salary in effect
immediately prior to the Termination Date, or (B) Executive’s annual base salary
in effect as of the date of the Change of Control. If Executive was
not employed by the Company or any of its Subsidiaries for the entire five-year
period, the average shall be determined only for those years during which
Executive was so employed.
(cc) Subsidiary. For
purposes of this Amended Agreement, “Subsidiary” shall mean any corporation of
which fifty percent (50%) or more of the voting stock is owned, directly or
indirectly, by the Company.
(dd) Target
Bonus. For purposes of this Amended Agreement, “Target Bonus” means
the assigned bonus target for the Executive under any short-term incentive
plan(s) of the Company, multiplied by his or her base salary, for the relevant
fiscal year. If the Executive’s base salary is changed during the
relevant fiscal year, the Target Bonus shall be calculated by multiplying the
Executive’s assigned bonus target by the highest base salary in effect during
that fiscal year.
(ee) Termination
Date. For purposes of this Amended Agreement, “Termination Date”
shall mean:
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(i)
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If
Executive’s Termination of Employment is because of Disability, thirty
(30) calendar days after Notice of Termination is given (provided
that
Executive shall not have returned to the full-time performance of
his/her
duties during such thirty-day period);
and
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(ii)
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If
Executive’s Termination of Employment is for Cause or Good Reason or for
any reason other than death or Disability, the date specified in
the
Notice of Termination (which in the case of a Termination of Employment
for Cause shall not be less than thirty (30) calendar days and in
the case
of a Termination of Employment for Good Reason shall not be less
than
thirty (30) calendar days nor more than sixty (60) calendar days,
respectively, from the date such Notice of Termination is
given).
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(ff) Termination
of
Employment. For purposes of this Amended Agreement, “Termination of Employment”
shall mean Executive’s separation from service with the Employer and all other
members of the Controlled Group, as defined in IRS regulations under Section
409A of the Code (generally, a decrease in the performance of services to
no
more than 20% of the average for the preceding 36-month period, and disregarding
leave of absences up to six months where there is a reasonable expectation
the
Employee will return).
II. Term
of Agreement.
(a) General. Upon
execution by Executive, this Amended Agreement shall commence effective as
of
January 28, 2008. This Amended Agreement shall continue in effect
through May 1, 2011; provided, however, that commencing on May 1, 2009, and
every May 1 thereafter, the term of this Amended Agreement shall automatically
be extended for an additional year unless, not later than ninety (90) calendar
days prior to the date on which this Amended Agreement otherwise automatically
would be extended, the Company shall have given notice to Executive that it
does
not wish to extend this Amended Agreement; provided further, however, that
if a
Change of Control shall have occurred during the original or any extended term
of this Amended Agreement, this Amended Agreement shall continue in effect
for a
period of thirty-six (36) months beyond the month in which the Change of Control
occurred.
(b) Disposition
of Employer. In the event Executive is employed by a Subsidiary, the
terms of this Amended Agreement shall expire if such Subsidiary is sold or
otherwise disposed of prior to the date on which a Change of Control occurs,
unless Executive continues in employment with the Controlled Group after such
sale or other disposition. If Executive’s Employer is sold or
disposed of on or after the date on which a Change of Control occurs, this
Amended Agreement shall continue through its original term or any extended
term
then in effect.
(c) Deemed
Change of Control. If Executive’s Termination of Employment occurs
prior to the date on which a Change of Control occurs, and such Termination
of
Employment was at the request of a third party who has taken steps to effect
a
Change of Control, or otherwise was in connection with the Change of Control,
then for all purposes of this Amended Agreement, a Change of Control shall
be
deemed to have occurred prior to such Termination of Employment.
(d) Expiration
of Agreement. No termination or expiration of this Amended Agreement
shall affect any rights, obligations or liabilities of either party that shall
have accrued on or prior to the date of such termination or
expiration.
III. Benefits
Following Change of Control.
(a) Prorated
Payout of Short Term Bonus. If a Change of Control shall have
occurred, Executive shall be entitled to, immediately upon the date of the
Change of Control, payment in full of Executive’s prorated bonus for the fiscal
year in which the Change of Control occurs. The prorated bonus amount
shall be calculated as Executive’s Target Bonus for the fiscal year in which the
Change of Control occurs, or, if greater, the actual bonus awarded to Executive
under any short-term incentive plan(s) of the Company for the fiscal year
immediately preceding the fiscal year in which the Change of Control occurs,
divided by 365 and multiplied by the number of calendar days in said year
immediately up to the day on which the Change of Control occurs. The payment
described in this section III(a) shall be subject to any valid deferral election
which was made prior to that time by the Executive under any Company qualified
pension plan, nonqualified pension plan, 401(k), excess 401(k) or non-qualified
deferred compensation plan then in effect. The payment of such prorated
short-term bonus shall also be taken into consideration for purposes of
computation of benefits under any qualified and/or nonqualified employee pension
benefit plans or employee welfare benefit plans then maintained by the Company,
and, if applicable, any agreement entered into between the Executive and the
Company which is then in effect, in accordance with the terms and conditions
of
such plans and/or agreements.
(b) Entitlement
to Benefits Upon Termination of Employment. If a Change of Control
shall have occurred, Executive shall be entitled to, in addition to the benefits
described in Subsection III(a), the benefits provided in Section IV hereof
upon his/her subsequent Termination of Employment within three (3) years after
the date of the Change of Control unless such Termination of Employment is
(i) a result of Executive’s death or Retirement, (ii) for Cause,
(iii) a result of Executive’s Disability, or (iv) by Executive other
than for Good Reason. For purposes of Executive’s entitlement to
benefits under Section IV of this Amended Agreement, “Termination of Employment”
shall be limited to a Termination of Employment that is not as a result of
Executive’s death, Retirement or Disability and (x) if by the Company, is not
for Cause, or (y) if by Executive, is for Good Reason.
(c) Notice
of Termination. Any purported Termination of Employment by either the
Company or Executive shall be communicated by written Notice of Termination
to
the other party hereto in accordance with Section VIII. For
purposes of this Amended Agreement, a “Notice of Termination” shall mean a
written notice that indicates the specific provision(s) of this Amended
Agreement relied upon and sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for Executive’s Termination of
Employment under the provision(s) so indicated. If Executive’s
Termination of Employment shall be for Cause or by Executive for other than
Good
Reason, the Company shall pay Executive his/her full base salary through the
Termination Date at the salary level in effect at the time Notice of Termination
is given and shall pay any amounts to be paid to Executive pursuant to any
other
compensation or stock or stock option plan(s), program(s) or employment
agreement(s) then in effect, and the Company shall have no further obligations
to Executive under this Amended Agreement.
If
within thirty (30) calendar days after any
Notice of Termination is given, the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the grounds for
Termination of Employment, then, notwithstanding the meaning of “Termination
Date” set forth in Subsection I(ff), the Termination Date shall be the date
on which the dispute is finally resolved, whether by mutual written agreement
of
the parties or by a decision rendered pursuant to Section XI; provided that
the Termination Date shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding
the pendency of any such dispute, the Company will continue to pay Executive
his/her full compensation including, without limitation, base salary, bonus,
incentive pay and equity grants, in effect when the notice of the dispute was
given, and continue Executive’s participation in all benefits plans or other
perquisites in which Executive was participating, or which Executive was
enjoying, when the Notice of Termination giving rise to the dispute was given,
until the dispute is finally resolved. Amounts paid under this
Subsection III(d) are in addition to and not in lieu of all other amounts
due to Executive under this Amended Agreement and shall not be offset against
or
reduce any other amounts due to Executive under this Amended
Agreement.
IV. Compensation
Upon a Termination of Employment.
Following
a Change
of Control, upon Executive’s Termination of Employment, Executive shall be
entitled to the following benefits, provided that such Termination of Employment
occurs during the three (3) year period immediately following the date of the
Change of Control, and such Termination of Employment is not as a result of
Executive’s death, Retirement or Disability and (x) if by the Company, is not
for Cause, or (y) if by Executive, is for Good Reason:
(a) Accelerated
Vesting of Equity Awards. All unvested stock options and restricted
stock and stock equivalent awards, including performance awards, that have
been
granted or sold to the Executive by the Company and which have not otherwise
vested, shall immediately accelerate and vest in the manner and to the extent
such awards would vest under the terms of the individual award agreements with
respect to each of those equity awards as if a change of control, as defined
in
those individual award agreements, had occurred, notwithstanding that the
definition of a change of control set forth in those award agreements may differ
from the definition of Change of Control set forth in this Agreement, and
notwithstanding that the terms of individual award agreements might provide
for
forfeiture of those awards upon Executive’s termination of
employment. With respect to stock equivalents, the
acceleration and vesting described in this Subsection IV(a) shall be subject
to
any valid deferral election which was made prior to that time by the Executive
under any Company non-qualified deferred compensation plan, program or permitted
deferral arrangement then in effect. If Executive does not incur a Termination
of Employment following a Change of Control, nothing herein shall be deemed
to
revise or amend the terms of the individual award agreements with respect to
such equity awards.
(b) Standard
Benefits. The Company shall pay Executive his/her full base salary
through the Termination Date at the rate in effect at the time the Notice of
Termination is given, no later than the second business day following the
Termination Date, plus all other amounts to which Executive is entitled under
any compensation plan(s) or program(s) of the Company applicable to Executive
at
the time such payments are due. Without limitation, amounts payable
pursuant to this Subsection IV(b) shall include, pursuant to the express
terms of any short-term incentive plan(s) in which Executive participates or
otherwise, Executive’s Target Bonus for the then-current fiscal year, pro-rated
to the Termination Date. If the Termination Date shall fall within
the same short-term incentive period, as set forth by the express terms of
any
of the short-term incentive plan(s) in which Executive participates or
otherwise, as of the Change of Control Date, and Executive has previously
received the prorated bonus amount as described in Subsection III(a), then
Executive shall be paid the difference between the prorated bonus amount as
described here in Subsection IV(a) and the prorated bonus amount described
in Subsection III(a).
(c) Additional
Benefits. The Company shall pay to Executive as additional pay
(“Additional Pay”), the product of three (3) multiplied by the sum of
(x) the greater of (i) Executive’s annual base salary in effect
immediately prior to the Termination Date, or (ii) Executive’s annual base
salary in effect as of the date of the Change of Control, and
(y) Executive’s Severance Bonus Amount. The Company shall pay
the Additional Pay to Executive in a lump sum, in cash, on the sixth month
anniversary of Executive’s Termination Date. Subject to the
provisions of Section XIII, the Company shall maintain for Executive all such
perquisites and fringe benefits enjoyed by Executive immediately prior to the
Termination Date as are approved in writing by the Company’s Chief Executive
Officer for such period as is specified in such writing. The payment described
in this section IV(c) shall not be deemed to be regular compensation which
is
subject to any deferral elections made by the Executive, or Company matching
contributions, under any qualified pension plan, nonqualified pension plan,
401(k), excess 401(k) or nonqualified deferred compensation plan then maintained
by the Company. Except as specifically set forth in section IV(d) below, such
payment shall not be taken into consideration for purposes of computation of
benefits under any qualified and/or non-qualified employee pension benefit
plans
or employee welfare benefit plans then maintained by the Company, and, if
applicable, any agreement entered into between the Executive and the Company
which is then in effect.
(d) Retirement
Plan Benefits. If not already vested, Executive shall be deemed fully
vested as of the Termination Date in any Company retirement plan(s) or other
written agreement(s) between Executive and the Company relating to pay or other
retirement income benefits upon retirement in which Executive was a participant,
party or beneficiary immediately prior to the Change of Control, and any
additional plan(s) or agreement(s) in which such Executive became a participant,
party or beneficiary thereafter. In addition to the foregoing, for
purposes of determining the amounts to be paid to Executive under such plan(s)
or agreement(s), the years of service with the Company and the age of Executive
under all such plans and agreements shall be deemed increased by thirty-six
(36)
months. For purposes of this Subsection IV(d), the term
“plan(s)” includes, without limitation, the Company’s qualified pension plan,
non-qualified pension plans, 401(k) plans and excess 401(k) plans, and any
companion, successor or amended plan(s), and the term “agreement(s)”
encompasses, without limitation, the terms of any offer letter(s) leading to
Executive’s employment with the Company where Executive was a signatory thereto,
any written amendment(s) to the foregoing and any subsequent agreements on
such
matters. In the event the terms of the plans referenced in this
Subsection IV(c) do not for any reason coincide with the provisions of this
Subsection IV(d) (e.g., if plan amendments would cause disqualification of
qualified plans), Executive shall be entitled to receive from the Company,
under
the terms of this Amended Agreement, an amount equal to all amounts Executive
would have received, had all such plans continued in existence as in effect
on
the date of this Amended Agreement after being amended to coincide with the
terms of this Subsection IV(d), payable in 36 monthly installments,
commencing on the first day of the month immediately following the sixth-month
anniversary of Executive’s Termination Date.
(e) Health
and Other Benefits.
(i) For
a period of thirty-six (36)
months after the Termination Date, the Company shall continue health, vision,
dental, life insurance and long-term disability benefits, including executive
benefits, to Executive and/or Executive’s family as if Executive’s employment
with the Company had not been terminated as of the Termination Date, in
accordance with the Company’s then-current plans, programs, practices and
policies on terms and conditions (including the level of benefits, deductibles
and employee payments for such benefits) not less favorable than those which
are
then being provided to peer executives of the Company. The cost of such
coverage, less the portion of the cost that the Executive is required to pay
for
such benefits pursuant to the Company’s plan or program, will be included in
Executive’s taxable income. The amount paid under this Section IV(e)(i) during a
taxable year of Executive may not impact the amount paid by the Company under
this Section IV(e)(i) during any other taxable year.
The
Company will also pay Executive an amount
equal to any federal, state and local taxes due on such taxable income such
that Executive will be in tax-equivalent position after such payments to what
Executive would have been in had Executive paid the full cost of the coverage.
Such amount will be paid to the Executive on the later of (i) the due date
for
the Executive’s tax return for the taxable year in which such taxable income is
reported, and (ii) the sixth month anniversary of Executive’s Termination Date.
In no event shall such amount be paid later than the end of Executive’s taxable
year next following the taxable year in which such taxes are remitted to the
applicable taxing authority.
(ii) If
pursuant to the terms and
conditions of any such health or welfare plan or program, the Company is not
able to continue Executive’s and/or Executive’s family participation in the plan
or program for all or any portion of such thirty-six (36) month period, the
Company will reimburse Executive for the cost of insurance for any such benefit
for Executive and/or Executive’s family, for such period as such benefits are
not able to be continued pursuant to a plan or program of the Company, less
the
amount that would have been paid by Executive for such benefits pursuant to
the
Company’s plan or program. Such amount will be payable in 36 monthly
installments, commencing on the first day of the month immediately following
the
sixth-month anniversary of Executive’s Termination Date In the event that
Executive and the Company cannot agree upon the amount of such payments
described in the previous two sentences, they shall mutually agree upon an
independent third-party benefits consultant who shall determine, after an
opportunity for both Executive and the Company to present evidence, the amount
of such payments which shall be made, which determination shall be binding
upon
Executive and the Company, absent manifest error. The cost of such coverage,
less the portion of the cost that the Executive is required to pay for such
benefits pursuant to the Company’s plan or program, will be included in
Executive’s taxable income. The amounts paid under this Section IV(e)(ii) during
a taxable year of Executive may not impact the Amount paid by the Company under
this Section IV(e)(ii) during any other taxable year.
The
Company will also pay Executive an amount
equal to any federal, state and local taxes due on such amounts paid by the
Company such that Executive will be in a tax equivalent position after such
payments to what Executive would have been in had Executive continued
participation in the plan or program as is contemplated by the first sentence
of
this Subsection IV(e). Such amount will be paid on the later of (i) the due
date
for the Executive’s tax return for the taxable year in which amounts paid under
this Section IV(e)(ii) are reported as taxable income, and (ii) the sixth month
anniversary of Executive’s Termination Date. In no event shall such amount be
paid later than the end of Executive’s taxable year next following the taxable
year in which such taxes are remitted to the applicable taxing
authority.
In
the event that the Executive, at the time of
a Change of Control, is not eligible to participate as a retiree in the
Company’s health and dental plans, including executive plans, the Company shall
immediately cause the eligibility requirements for participation as a retiree
in
such plans to be revised or waived so that Executive shall be entitled to
participate as a retiree following Executive’s Termination of Employment and the
continuation of benefits period described in the preceding
paragraph.
(f) Alternatives
in the Event of Excise Tax.
(i) In
the event any payment(s) or the value of any benefit(s) received or to be
received by Executive in connection with Executive’s Termination of Employment
or contingent upon a Change of Control (whether received or to be received
pursuant to the terms of this Amended Agreement (the “Agreement Payments”) or of
any other plan, arrangement or agreement of the Company, its successors, any
person whose actions result in a Change of Control, or any person affiliated
with any of them (or which, as a result of the completion of the transaction(s)
causing a Change of Control, will become affiliated with any of them) (“Other
Payments” and, together with the Amended Agreement Payments, the “Payments”)),
are determined, under the provisions of Subsection IV(f)(ii), to be subject
to
an excise tax imposed by Section 4999 of the Code (any such excise tax, together
with any interest and penalties, are hereinafter collectively referred to as
the
“Excise Tax”), as determined in this Subsection IV(f), the Company shall pay to
Executive an additional amount such that the net amount retained by Executive,
after any federal, state, and local income and employment tax and Excise Tax
payable by Executive upon the Payment(s) provided for by this Subsection
IV(f)(i), and any interest, penalties or additions to tax payable by Executive
with respect thereto shall be equal to the Excise Tax imposed on the Payments
(the “Gross-Up Payment(s)”). The intent of the parties is that the
Company shall be responsible in full for, and shall pay, any and all Excise
Tax
on any Payments and Gross-Up Payment(s) and any income and all excise and
employment taxes (including, without limitation, penalties and interest) imposed
on any Gross-Up Payment(s) as well as any loss of deduction caused by or related
to the Gross-Up Payment(s). Notwithstanding the above, however, and any other
provision of this Agreement, if the After-Tax Amount (as defined below) of
the
aggregate of the Payments and the Gross-Up Payments that would, but for the
provisions of this sentence, be payable to Executive, does not exceed 110%
of
the After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall
be
made to Executive, and the aggregate amount of the Agreement Payments payable
to
Executive shall be reduced to the largest amount which would both (i) not cause
any Excise Tax to be payable by Executive, and (ii) not cause any Payments
to
become nondeductible by the Company by reason of Section 280G of the Code (or
any successor provision thereto). For purposes of this Agreement: (i) “After-Tax
Amount” means the portion of a specified amount that would remain after payment
of all Excise Taxes, income taxes, payroll and withholding taxes, and other
applicable taxes paid or payable by Executive in respect of such specified
amount; (ii) “Floor Amount” means the greatest pre-tax amount of Payments that
could be paid to Executive without causing Executive to become liable for any
Excise Taxes in connection therewith; and (iii) “After-Tax Floor Amount” means
the After-Tax Amount of the Floor Amount.
If
there is a determination that the Agreement
Payments payable to Executive must be reduced pursuant to the penultimate
sentence of the immediately preceding paragraph, the Company shall promptly
give
Executive notice to that effect and a copy of the detailed calculation thereof
and of the amount to be reduced. Executive may then elect, in Executive’s sole
discretion, which and how much of the Agreement Payments shall be eliminated
or
reduced as long as after such election the aggregate present value of the
Agreement Payments equals the largest amount that would both (i) not cause
any
Excise Tax to be payable by Executive, and (ii) not cause any Payments to become
nondeductible by the Company by reason of Section 280G of the Code (or any
successor provision thereto). Executive shall advise the Company in writing
of
Executive’s election within ten (10) days of Executive’s receipt of such notice
from the Company. If no election is made by Executive within the ten-day period,
the Company may elect which and how much of the Agreement Payments shall be
eliminated or reduced as long as after such election the aggregate present
value
of the Agreement Payments equals the largest amount that would both (i) not
cause any Excise Tax to be payable by Executive, and (ii) not cause any Payments
to be nondeductible by the Company by reason of Section 280G of the Code (or
any
successor provision thereto). For purposes of this paragraph, present value
shall be determined in accordance with Code Section 280G(d)(4).
(ii) All
determinations required to be made under this Subsection IV(f), including,
without limitation, whether and when a Gross-Up Payment is required, the amount
of such Gross-Up Payment, and whether the aggregate amount of Agreement Payments
shall be reduced, and the assumptions to be utilized in arriving at such
determinations, unless otherwise set forth in this Amended Agreement, shall
be
made by a nationally recognized certified public accounting firm selected by
the
Company and reasonably acceptable to Executive (the “Accounting
Firm”). For purposes of determining the amount of any Gross-Up
Payment, Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes at the highest
marginal rate of taxation in the state and locality of Executive’s residence on
the Termination Date, net of the maximum reduction in federal income taxes
which
could be obtained from deduction of such state and local taxes. The
Company shall cause the Accounting Firm to provide detailed supporting
calculations to the Company and Executive within fifteen (15) business days
after notice is given by Executive to the Company that any or all of the
Payments have occurred, or such earlier time as is requested by the
Company. Within two (2) business days after such notice is given to
the Company, the Company shall instruct the Accounting Firm to timely provide
the data required by this Subsection IV(f)(ii) to Executive. All fees
and expenses of the Accounting Firm shall be paid in full by the
Company. Any Gross-Up Payment as determined pursuant to this
Subsection IV(e)(ii), net of applicable withholding taxes, shall be paid by
the
Company to the Executive on the later of (i) five (5) business days after
receipt of the Accounting Firm’s determination, or (ii) the sixth-month
anniversary of Executive’s Termination Date. If the Accounting
Firm determines that there is substantial authority (within the meaning of
Section 6662 of the Code) that no Excise Tax is payable by Executive, the
Accounting Firm shall furnish Executive with a written opinion that failure
to
disclose or report the Excise Tax on Executive’s federal income tax return will
not constitute a substantial understatement of tax or be reasonably likely
to
result in the imposition of a negligence or any other penalty. Any
determination by the Accounting Firm shall be binding upon the Company and
Executive in the absence of material mathematical or legal error. As
a result of the uncertainty in the application of Section 4999 of the Code
at
the time the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments will not have been made by the Company that
should have been made or that Gross-Up Payments will have been made that should
not have been made, in each case, consistent with the calculations required
to
be made hereunder. In the event the Company exhausts its remedies
pursuant to Subsection IV(f)(iii) below and Executive is thereafter required
to
make a payment of any Excise Tax or any interest, penalties or addition to
tax
related thereto, the Accounting Firm shall determine the amount of underpayment
of Excise Taxes that has occurred and any such underpayment and interest,
penalties or addition to tax shall be paid by the Company to Executive along
with such additional amounts described in Section IV (f)(i) on the later of
(i) five (5) business days after receipt of the Accounting Firm’s determination,
or (ii) the sixth-month anniversary of Executive’s Termination
Date. In the event the Accounting Firm determines that an overpayment
of Gross-Up Payment(s) has occurred, Executive shall be required to reimburse
the Company for such overpayment; provided, however, that Executive shall have
no duty or obligation whatsoever to reimburse the Company if Executive’s receipt
of the overpayment, or any portion thereof, is included in Executive’s income
and Executive’s reimbursement of the same is not deductible by Executive for
federal and state income tax purposes.
(iii) Executive
shall notify the Company in writing of any claim of which Executive is aware
by
the Internal Revenue Service or state or local taxing authority, that, if
successful, would result in any Excise Tax or an underpayment of any Gross-Up
Payment(s). Such notice shall be given as soon as practicable but no
later than fifteen (15) business days after Executive is informed in writing
of
the claim by the taxing authority and Executive shall provide written notice
of
the Company of the nature of the claim, the administrative or judicial appeal
period, and the date on which any payment of the claim must be
paid. Executive shall not pay any portion of the claim prior to the
expiration of the thirty (30) day period following the date on which Executive
gives such notice to the Company (or such shorter period ending on the date
that
any amount under the claim is due). If the Company notifies Executive
in writing prior to the expiration of such thirty (30) day period that it
desires to contest the claim, Executive shall:
|
(A)
|
give
the
Company any information reasonably requested by the Company relating
to
the claim;
|
|
(B)
|
take
such
action in connection with contesting the claim as the Company shall
reasonably request in writing from time to time, including without
limitation, accepting legal representation concerning the claim by
an
attorney selected by the Company who is reasonably acceptable to
Executive; and
|
|
(C)
|
cooperate
with the Company in good faith in order to effectively contest the
claim;
|
provided,
however,
that the Company shall bear and pay directly all costs and expenses (including,
without limitation, additional interest and penalties and attorneys’ fees)
incurred in such contests and shall indemnify and hold Executive harmless,
on an
after-tax basis, for any Excise Tax or income tax (including, without
limitation, interest and penalties thereon) imposed as a result of such
representation. Without limitation upon the foregoing provisions of
this Subsection IV(f)(iii), except as provided below, the Company shall control
all proceedings concerning such contest and, in its sole opinion, may pursue
or
forego any and all administrative appeals, proceedings, hearings and conferences
with the taxing authority pertaining to the claim. At the written
request of the Company and upon payment to Executive of an amount at least
equal
to any amount necessary to obtain the jurisdiction of the appropriate taxing
authority and ▇▇▇ for a refund, Executive agrees to prosecute in cooperation
with the Company any contest of a claim to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if
the
Company requests Executive to pay the claim and ▇▇▇ for a refund, the Company
shall advance the amount of such payment to Executive, on an interest-free
basis, and shall indemnify and hold Executive harmless on an after-tax basis,
from any Excise Tax or income tax (including, without limitation, interest
and
penalties thereon) imposed on such advance or for any imputed income on such
advance. Any extension of the statute of limitations relating to
assessment of any Excise Tax for the taxable year of Executive which is the
subject of the claim is to be limited solely to the
claim. Furthermore, the Company’s control of the contest shall be
limited to issues for which a Gross-Up Payment would be payable
hereunder. Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any
other
taxing authority.
(iv) If
after the receipt by
Executive of an amount advanced by the Company pursuant to Subsection IV(f)(iii)
above, Executive receives any refund of a claim or any additional amount that
was necessary to obtain jurisdiction, Executive shall promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Company pursuant to Subsection IV(f)(iii)
above, a determination is made that Executive shall not be entitled to any
refund of the claim, and the Company does not notify Executive in writing of
its
intent to contest such denial of refund of a claim prior to the expiration
of
thirty (30) calendar days after such determination, then the portion of such
advance attributable to a claim shall be forgiven by the Company and shall
not
be required to be repaid by Executive. The amount of such advance
attributable to a claim shall offset, to the extent thereof, the amount of
the
underpayment required to be paid by the Company to Executive.
(g) Legal
Fees and Expenses. The Company shall pay to Executive all legal fees
and expenses as and when incurred by Executive in connection with this Amended
Agreement, including all such fees and expenses, if any, incurred in contesting
or disputing any Termination of Employment or in seeking to obtain or enforce
any right or benefit provided by this Amended Agreement, regardless of the
outcome, unless, in the case of a legal action brought by or in the name of
Executive, a decision is rendered pursuant to Section XI, or in any other
proper legal proceeding, that such action was not brought by Executive in good
faith.
(h) No
Mitigation. Executive shall not be required to mitigate the amount of
any payment provided for in this Section IV by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
Section IV be reduced by any compensation earned by Executive as the result
of employment by another employer or by retirement or other benefits received
from whatever source after the Termination Date or otherwise, except as
specifically provided in this Section IV. The Company’s
obligation to make payments to Executive provided for in this Amended Agreement
and otherwise to perform its obligations hereunder shall not be affected by
any
set-off, counterclaim, recoupment, defense or other claim, right or action
that
the Company or Employer may have against Executive or other
parties.
V. Death
and Disability Benefits.
In
the event of the
death or Disability of Executive after a Change of Control, Executive, or in
the
case of death, Executive’s Beneficiaries (as defined below in
Subsection VI(b)), shall receive the benefits to which Executive or his/her
Beneficiaries are entitled under this Amended Agreement and any and all
retirement plans, pension plans, disability policies and other applicable plans,
programs, policies, agreements or arrangements of the Company.
VI. Successors;
Binding Agreement.
(a) Obligations
of Successors. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Amended Agreement in the same manner and to
the
same extent that the Company is required to perform it. Failure of
the Company to obtain such assumption and agreement prior to the effectiveness
of any such succession shall be a breach of this Amended Agreement and shall
entitle Executive to compensation from the Company in the same amount and on
the
same terms as Executive would be entitled hereunder if Executive had terminated
employment for Good Reason following a Change of Control, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Termination Date. As used in
this Amended Agreement, the term “Company” shall mean Company, including any
surviving entity or successor to all or substantially all of its business and/or
assets and the parent of any such surviving entity or successor.
(b) Enforceable
by Beneficiaries. This Amended Agreement shall inure to the benefit
of and be enforceable by Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees (the “Beneficiaries”). In the event of the death of
Executive while any amount would still be payable hereunder if such death had
not occurred, all such amounts, unless otherwise provided herein, shall be
paid
in accordance with the terms of this Amended Agreement to Executive’s
Beneficiaries.
(c) Employment. Except
in the event of a Change of Control and, thereafter, only as specifically set
forth in this Amended Agreement, nothing in this Amended Agreement shall be
construed to (i) limit in any way the right of the Company or a Subsidiary
to terminate Executive’s employment at any time for any reason or for no reason;
or (ii) be evidence of any agreement or understanding, expressed or
implied, that the Company or a Subsidiary will employ Executive in any
particular position, on any particular terms or at any particular rate of
remuneration.
VII. Non-Competition;
Non-Solicitation; Confidential Information.
(a) In
consideration of the benefits provided under this Amended Agreement upon
Executive’s Termination of Employment, Executive agrees that for a period of two
years after Executive’s Termination of Employment, Executive will not compete
against the Company or any Employer within the Controlled Group in any Energizer
Business. For purposes of this Amended 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. For purposes
of this Amended 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 an Energizer Business. This subparagraph, however,
does
not preclude Executive 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.
(b) For
a period of two years following the Executive’s Termination of Employment,
Executive shall not (i) induce or attempt to induce any employee of the Company
or any Employer within the Controlled Group to leave the employ of the Company
or such Employer or in any way interfere with the relationship between the
Company or any such Employer and its employees or (ii) induce or attempt to
induce any customer, supplier, distributor, broker, or other business relation
of the Company or any Employer within the Controlled Group to cease doing
business with the Company or such Employer, or in any way interfere with the
relationship between any customer, supplier, distributor, broker or other
business relation and the Company or such Employer.
(c) Executive
shall hold in fiduciary capacity for the benefit of the Company all secret
or
confidential information, knowledge or data relating to the Company, the
Subsidiaries and their respective businesses, which shall have been obtained
during Executive’s employment with the Employer and which shall not be public
knowledge (other than by acts by Executive or his/her representatives in
violation of this Amended Agreement). After Executive’s Termination
of Employment with the Company or any Employer within the Controlled Group,
Executive shall not, without prior written consent of the Company or the
Employer, communicate or divulge any such information, knowledge or data to
anyone other than the Company, the Employer or those designated by
them.
In
no event shall
an asserted violation of this Section VII constitute a basis for deferring
or withholding any amounts otherwise payable to Executive under this Amended
Agreement.
VIII. Notice.
All
notices and
communications including, without limitation, any Notice of Termination
hereunder, shall be in writing and shall be given by hand delivery to the other
party, by registered or certified mail, return receipt requested, postage
prepaid, or by overnight delivery service, addressed as follows:
If
to
Executive:
___________________________
___________________________
___________________________
If
to the
Company:
Energizer
Holdings,
Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: General
Counsel
or
to such other
address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be deemed given
and effective when actually received by the addressee.
IX. Miscellaneous.
No
provision of
this Amended Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Executive and
the Company’s Chief Executive Officer or other authorized officer designated by
the Board or an appropriate committee of the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of,
or
compliance with, any conditions or provision of this Amended Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Amended
Agreement. The validity, interpretation, construction and performance
of this Amended Agreement shall be governed by the laws of the State of
Missouri. All references to sections of the Code or the Exchange Act
shall be deemed also to refer to any successor provisions of such
sections. Any payments provided for hereunder shall be paid net of
any applicable withholding required under federal, state or local
law. The obligations of the Company under Sections IV and V shall
survive the expiration of the term of this Amended Agreement.
X. Validity.
The
invalidity or
unenforceability of any provision of this Amended Agreement shall not affect
the
validity or enforceability of any other provision of this Amended Agreement,
which shall remain in full force and effect.
XI. Arbitration.
Any
dispute that
may arise directly or indirectly in connection with this Amended Agreement,
Executive’s employment or Executive’s Termination of Employment, whether arising
in contract, statute, tort, fraud, misrepresentation, discrimination or other
legal theory, shall be resolved by arbitration in St. Louis, Missouri under
the
applicable rules and procedures of the AAA. The only legal claims
between Executive and the Company or any Subsidiary that would not be included
in this agreement to arbitration are claims by Executive for workers’
compensation or unemployment compensation benefits, claims for benefits under
a
Company or Subsidiary benefit plan if the plan does not provide for arbitration
of such disputes, and claims by Executive that seek judicial relief in the
form
of specific performance of the right to be paid until the Termination Date
during the pendency of any applicable dispute or controversy. If this
Article XI is in effect, any claim with respect to this Amended Agreement,
Executive’s employment or Executive’s Termination of Employment must be
established by a preponderance of the evidence submitted to an impartial
arbitrator. A single arbitrator engaged in the practice of law shall
conduct any arbitration under the applicable rules and procedures of the
AAA. The arbitrator shall have the authority to order a pre-hearing
exchange of information by the parties including, without limitation, production
of requested documents, and examination by deposition of parties and their
authorized agents. If this Article XI is in effect, the decision
of the arbitrator: (i) shall be final and binding,
(ii) shall be rendered within ninety (90) days after the impanelment of the
arbitrator, and (iii) shall be kept confidential by the parties to such
arbitration. The arbitration award may be enforced in any court of
competent jurisdiction. The Federal Arbitration Act, 9 U.S.C. §§ 1
et seq., not state law, shall govern the arbitrability of all
claims.
XII. Entire
Agreement.
This
Amended Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof, and supersedes and replaces, in
its
entirety, the Amended Change of Control Employment Agreement dated as of January
23, 2006. Upon the execution of this Amended Agreement by the
Executive and the Company, said prior agreement shall be considered null and
void and of no further effect.
XIII. Compliance
with Code Section 409A.
No
provision of
this Agreement shall be operative to the extent that it will result in the
imposition of the additional tax described in Code Section 409A(a)(1)(B)(i)(II)
because of failure to satisfy the requirements of Code Section 409A and the
regulations and guidance issued thereunder.
IN
WITNESS WHEREOF,
the Company and Executive have executed this Amended Agreement effective as
of
the 28th day of January, 2008.
Energizer
Holdings,
Inc. Attest:
By:___________________________________ By:______________________________
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice
President, Human
Resources
Secretary
______________________________________ ________________________________
Executive Witness
Executive
Officers
with Change of Control Employment Agreements
▇.
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇