RESTRICTED STOCK EQUIVALENT AWARD AGREEMENT
Exhibit
10(2)
In consideration of the mutual
covenants contained herein, Energizer Holdings, Inc. (“Company”), and __________
(“Recipient”) hereby agree as follows:
ARTICLE
I – COMPANY COVENANTS
Company hereby
covenants:
1. Award.
The Company, pursuant to its 2009
Incentive Stock Plan (the “Plan”), grants to Recipient a Restricted Stock
Equivalent Award of ____ restricted common stock equivalents (“Equivalents”).
This Award Agreement is subject to the provisions of the Plan and to the
following terms and conditions.
2. Vesting;
Payment.
The Equivalents
granted to Recipient will vest on October 12, 2012, subject to the provisions of
this Award Agreement (such date is hereinafter referred to as the
“Vesting/Payment Date”).
Upon vesting, each
vested Equivalent will convert, at that time into one share of the Company’s
$.01 par value Common Stock (“Common Stock”), which will be issued to the
Recipient on, or as soon as practicable after, the Vesting/Payment Date, but not
later than December 31, 2012.
3. Additional
Cash Payment.
Additional cash
payments equal to the amount of dividends, if any, which would have been paid to
the Recipient had shares of Common Stock been issued in lieu of the Equivalents,
will be paid on or after the Vesting/Payment Date, but not later than the
December 31, 2012. No interest shall be included in the calculation of such
additional cash payment.
4. Acceleration.
Notwithstanding the
provisions of paragraph 2 above, all Equivalents credited to the Recipient will
immediately vest, convert into shares of Common Stock and be paid to the
Recipient, his or her designated beneficiary, or his or her legal
representative, in accordance with the terms of the Plan, in the event
of:
(a) the
Recipient’s death;
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(b)
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Recipient’s
involuntary Termination of Employment, by reason of continuing disability,
immediately following exhaustion of short-term disability benefits;
or
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(c)
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a Change of
Control of the Company.
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In
the event of acceleration because of the Recipient’s death, the shares of Common
Stock into which the Equivalents convert will be issued, and related payments,
if any, shall be paid, no later than (i) the 15th day
of the third calendar month following his or her death, or (ii) a date after his
or her death, but not later than the December 31st
immediately following such event. In the event of acceleration
because of the occurrence of a Change of Control of the Company, the shares of
Common Stock into which the Equivalents convert will be issued, and related
payments, if any, shall be paid, no later than (i) the 15th day
of the third calendar month following the Change of Control, or (ii) a date
after the Change of Control, but not later than the December 31st
immediately following the Change of Control.
5. Forfeiture.
All rights in and
to any and all Equivalents granted pursuant to this Award Agreement, and to any
shares of Common Stock into which they would convert, which have not vested as
described in paragraphs 2 or 4 above, shall be forfeited upon
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(a)
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the
Recipient’s voluntary or involuntary Termination of Employment, other than
an involuntary Termination of Employment, by reason of continuing
disability, immediately following exhaustion of short-term disability
benefits;
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(b)
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a
determination by the Committee that the Recipient engaged in competition
with the Company; or
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(c)
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a
determination by the Committee that the Recipient engaged in activity or
conduct contrary to the best interests of the Company, as described in the
Plan.
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6. Shareholder
Rights; Adjustment of Equivalents.
Recipient shall not
be entitled, prior to the conversion of Equivalents into shares of Common Stock,
to any rights as a shareholder with respect to such shares of Common Stock,
including the right to vote, sell, pledge, transfer or otherwise dispose of the
shares. Recipient shall, however, have the right to designate a
beneficiary to receive such shares of Common Stock under this Award Agreement,
subject to the provisions of Section V of the Plan. The number of
Equivalents credited to Recipient may be adjusted, in the sole discretion of the
Nominating and Executive Compensation Committee of the Company’s Board of
Directors, in accordance with the provisions of Section VI(F) of the
Plan.
7. Other.
The Company
reserves the right, as determined by the Committee, to convert this Award
Agreement to a substantially equivalent award and to make any other modification
it may consider necessary or advisable to comply with any applicable law or
governmental regulation, or to preserve the tax deductibility of any payments
hereunder. Shares of Common Stock shall be withheld in satisfaction of federal,
state, and local or other international withholding tax obligations arising upon
the vesting of Equivalents.
8. Delayed
Payment Upon Termination of Employment.
Subject to the
provisions of this Award concerning acceleration and payment upon death, a
payment on account of Termination of Employment may not be made until at least
six months after such Termination of Employment. Any payment otherwise due in
such six month period shall be suspended and become payable at the end of such
six month period.
9. Definitions.
Affiliates
shall mean all entities within the controlled group that includes the Company,
as defined in Code Sections 414(b) and 414(c) and the regulations thereunder,
provided that the language “at least 50 percent” shall be used instead of “at
least 80 percent” each place it appears in such definition.
Change
of Control shall mean the following:
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(i)
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The
acquisition by one person, or more than one person acting as a group, of
ownership of stock (including Common Stock) of the Company that, together
with stock held by such person or group, constitutes more than 50% of the
total fair market value or total voting power of the stock of the Company.
Notwithstanding the above, if any person or more than one person acting as
a group, is considered to own more than 50% of the total fair market value
or total voting power of the stock of the Company, the acquisition of
additional stock by the same person or persons will not constitute a
Change of Control; or
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(ii)
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A majority of
the members of the Company’s Board of Directors is replaced during any
twelve-month period by directors whose appointment or election is not
endorsed by a majority of the members of the Company’s Board of Directors
before the date of the appointment or
election.
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Persons will not be
considered to be acting as a group solely because they purchase or own stock of
the same corporation at the same time, or as a result of the same public
offering. However, persons will be considered to be acting as a group if they
are owners of a corporation that enters into a merger, consolidation, purchase
or acquisition of stock, or similar business transaction with the
Company.
This definition of
Change of Control shall be interpreted in accordance with, and in a manner that
will bring the definition into compliance with, the regulations under Section
409A of the Internal Revenue Code.
Termination
of Employment shall mean a “separation from service” with the Company and
its Affiliates, as such term is defined in Code Section 409A and the regulations
thereunder.
ARTICLE
II - RECIPIENT
COVENANTS
Recipient hereby
covenants:
1. Confidential
Information.
By
executing this Award Agreement, I agree that I shall not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of my assigned duties and for the benefit of
the Company, either during the period of my employment or at any time
thereafter, any nonpublic, proprietary or confidential information, knowledge or
data relating to the Company, any of its affiliates, or their businesses, which
I shall have obtained during my employment by the Company or an affiliate. The
foregoing shall not apply to information that (a) was known to the public prior
to its disclosure to me; (b) becomes known to the public subsequent to
disclosure to me through no wrongful act or mine or any of my representatives;
or (c) I am required to disclose by applicable law, regulation or legal process
(provided that I provide the Company with prior notice of the contemplated
disclosure and reasonably cooperate with the Company at its expense in seeking a
protective order or other appropriate protection of such information).
Notwithstanding clauses (a) or (b) of the preceding sentence, my obligation to
maintain such disclosed information in confidence shall not terminate if only
portions of the information are in the public domain.
2. Non-Competition.
By
executing this Award Agreement, I acknowledge that my services are of a unique
nature for the Company that are irreplaceable, and that my performance of such
services for a competing business will result in irreparable harm to the Company
and its affiliates. Accordingly, during my employment with the Company or any
affiliate and for the two (2) year period thereafter, I agree that I will not,
directly or indirectly, own, manage, operate, control, be employed by (whether
as an employee, consultant, independent contractor or otherwise, and whether or
not for compensation) or render services to any person, firm, corporation or
other entity, in whatever form, engaged in any business of the same type as any
business in which the Company or any of its affiliates is engaged on the date of
termination or in which they have proposed, on or prior to such date, to be
engaged in on or after such date and in which I have been involved to any extent
(on other than a de minimus basis) at any time during the one (1) year period
ending with my date of termination, in any locale of any country in which the
Company or any of its affiliates conducts business. This subsection shall not
prevent me from owning not more than one percent of the total shares of all
classes of stock outstanding of any publicly held entity engaged in such
business. I agree that the foregoing restrictions are reasonable,
necessary, and enforceable for the protection of the goodwill and business of
the Company.
3. Non-Solicitation.
During my
employment with the Company or an affiliate and for the two (2) year period
thereafter, I agree that I will not, directly or indirectly, individually or on
behalf of any other person, firm, corporation or other entity, knowingly
solicit, aid or induce (i) any employee of the Company or any affiliate to leave
such employment in order to accept employment with or render services to or with
any other person, firm, corporation or other entity unaffiliated with the
Company or knowingly take any action to hire or to materially assist or aid any
other person, firm, corporation or other entity in identifying or hiring any
such employee, or (ii) any customer of the Company or any affiliate to purchase
goods or services then sold by the Company or any affiliate from another person,
firm, corporation or other entity or assist or aid any other persons or entity
in identifying or soliciting any such customer. I agree that the
foregoing restrictions are reasonable, necessary, and enforceable in order to
protect the Company’s trade secrets, confidential and proprietary information,
goodwill, and loyalty.
4. Non-Disparagement.
I
agree not to make any statements that disparage the Company or its affiliates or
their respective employees, officers, directors, products or services, and the
Company, by its execution of this Award Agreement agrees that it and its
affiliates and their respective executive officers and directors shall not make
any such statements regarding me. Notwithstanding the foregoing, statements made
in the course of sworn testimony in administrative, judicial or arbitral
proceedings (including, without limitation, depositions in connection with such
proceedings) shall not be subject to this subsection.
5. Reasonableness.
In
the event any of the provisions of this Article II shall ever be deemed to
exceed the time, scope or geographic limitations permitted by applicable laws,
then such provisions shall be reformed to the maximum time, scope or geographic
limitations, as the case may be, permitted by applicable laws.
6. Equitable
Relief.
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(a)
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I acknowledge
that the restrictions contained in this Article II are reasonable and
necessary to protect the legitimate interests of the Company and its
affiliates, that the Company would not have granted me this Award
Agreement in the absence of such restrictions, and that any violation of
any provisions of this Article II will result in irreparable injury to the
Company and its affiliates. By agreeing to accept this Award Agreement, I
represent that my experience and capabilities are such that the
restrictions contained herein will not prevent me from obtaining
employment or otherwise earning a living at the same general level of
economic benefit as is currently the case. I further represent and
acknowledge that I have been advised by the Company to consult my own
legal counsel in respect of this Award Agreement, and I have had full
opportunity, prior to agreeing to accept this Award Agreement, to review
thoroughly its terms and provisions with my
counsel.
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(b)
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I agree that
the Company shall be entitled to preliminary and permanent injunctive
relief, without the necessity of proving actual damages, as well as an
equitable accounting of all earnings, profits and other benefits arising
from any violation of this Article II, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may
be entitled.
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(c)
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I irrevocably
and unconditionally consent to the service of any process, pleadings
notices or other papers in a manner permitted by
law.
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7. Waiver;
Survival of Provisions.
The failure by the
Company to enforce at any time any of the provisions of this Article II or to
require at any time performance by me of any provisions hereof, shall in no way
be construed to be a release of me or waiver of such provisions or to affect the
validity of this Award Agreement or any part hereof, or the right of the Company
thereafter to enforce every such provision in accordance with the terms of this
Award Agreement. The obligations contained in this Article II shall survive the
termination of my employment with the Company or any affiliate and shall be
fully enforceable thereafter.
ARTICLE
III - OTHER AGREEMENTS
1. Governing
Law.
All questions
pertaining to the validity, construction, execution, and performance of this
Award Agreement shall be construed in accordance with, and be governed by, the
laws of the State of Missouri, without giving effect to the choice of law
principles thereof.
2. Notices.
Any notices
necessary or required to be given under this Award Agreement shall be
sufficiently given if in writing, and personally delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid, to the
last known addresses of the parties hereto, or to such other address or
addresses as any of the parties shall have specified in writing to the other
party hereto.
3. Entire
Agreement.
This Award
Agreement constitutes the entire agreement of the parties hereto with respect to
the matters contained herein, and no modification, amendment, or waiver of any
of the provision of this Award Agreement shall be effective unless in writing
and signed by all parties hereto. This Award Agreement constitutes
the only agreement between the parties hereto with respect to the matters herein
contained.
4. Waiver.
No
change or modification of this Award Agreement shall be valid unless the same is
in writing and signed by all the parties hereto. No waiver of any
provision of this Award Agreement shall be valid unless in writing and signed by
the party against whom it is sought to be enforced.
5. Counterparts;
Effect of Recipient’s Signature.
This Award
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart. The provisions of this Award
Agreement shall not be valid and in effect until such execution by both parties.
By the execution of this Award Agreement, Recipient signifies that Recipient has
fully read, completely understands, and voluntarily agrees with this Award
Agreement consisting of seven (7) pages and knowingly and voluntarily accepts
all of its terms and conditions.
6. Effective
Date.
This Award
Agreement shall be deemed to be effective as of the date executed.
IN
WITNESS WHEREOF, the Company duly executed this Award Agreement as of October
12, 2009, and Recipient duly executed it as of ________________________,
2009.
ACKNOWLEDGED AND
ACCEPTED: ENERGIZER
HOLDINGS, INC.
________________________________ By:_____________________________
Recipient ▇▇▇▇ ▇.
▇▇▇▇▇
Chief
Executive Officer
Recipients:
▇.
▇▇▇▇▇ - 26,000 Time-Vesting Equivalents
▇.
▇▇▇▇▇▇▇▇▇▇▇ – 6,300 Time-Vesting Equivalents
D.
Sescleifer – 6,600 Time-Vesting Equivalents
▇.
▇▇▇▇▇▇▇▇ – 6,600 Time-Vesting Equivalents
▇.
▇▇▇▇▇▇▇▇▇ – 4,800 Time-Vesting Equivalents
▇.
▇▇▇▇▇▇ – 4,200 Time-Vesting Equivalents