Exhibit 10.29.6
AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT (this "AGREEMENT") is
made as of January 28, 2005, by and among Prestige International Holdings, LLC,
a Delaware limited liability company ("HOLDINGS LLC"), Prestige Brands Holdings,
Inc., a Delaware corporation (the "COMPANY"), Prestige Brands, Inc., a Delaware
corporation ("EMPLOYER"), and ▇▇▇▇▇ ▇. ▇▇▇▇ ("EXECUTIVE").
This Agreement amends and restates the Senior Management Agreement (as
amended prior to the date hereof, the "PRIOR AGREEMENT"), dated as of February
6, 2004, by and among Holdings LLC, Employer and Executive. The Company,
Holdings LLC, Employer and Executive desire to amend and restate the Prior
Agreement in connection with the transactions (the "EXCHANGE TRANSACTIONS")
contemplated by the Exchange Agreement (the "EXCHANGE AGREEMENT"), dated as of
the date hereof, among Holdings LLC, the Company and the Unitholders of Holdings
LLC, which are being consummated in order to facilitate an initial public
offering (the "INITIAL PUBLIC OFFERING") of the Company's common stock, par
value $.01 per share (the "COMMON SHARES").
Holdings LLC and Executive entered into the Prior Agreement pursuant to
which Executive acquired from Holdings LLC, and Holdings LLC issued to
Executive, 749.569 Class B Preferred Units of the Company (the "CLASS B
PREFERRED UNITS") and 2,531,977 Common Units of the Company (the "COMMON
UNITS"). Certain definitions are set forth in SECTION 10 of this Agreement.
The execution and delivery of this Agreement by Holdings LLC and Executive
was a condition to (A) the purchase of Class B Preferred Units and Common Units
by GTCR Fund VIII, L.P., a Delaware limited partnership ("GTCR FUND VIII"), GTCR
Fund VIII/B, L.P., a Delaware limited partnership ("GTCR FUND VIII/B"), GTCR
Co-Invest II, L.P., a Delaware limited partnership ("GTCR CO-INVEST") and the
TCW/Crescent Purchasers (as defined herein) pursuant to the Unit Purchase
Agreement among Holdings LLC and such Persons dated as of February 6, 2004 (as
amended from time to time, the "PURCHASE AGREEMENT") and (B) the purchase of
warrants to acquire Class B Preferred Units and Common Units by GTCR Capital
Partners, L.P., a Delaware limited partnership ("GTCR CAPITAL PARTNERS") and the
TCW/Crescent Lenders (as defined herein) pursuant to the Warrant Agreement
between Holdings LLC and such Persons dated as of February 6, 2004. Certain
provisions of this Agreement are intended for the benefit of, and will be
enforceable by, the Purchasers (as defined herein).
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, (i) the parties to the Prior Agreement hereby amend and
restate the Prior Agreement, effective upon consummation of the Exchange
Transactions (the "EFFECTIVE DATE"), and (ii) the parties to this Agreement
hereby agree as follows:
PROVISIONS RELATING TO EXECUTIVE SECURITIES
1. ACQUISITION OF CARRIED SHARES.
(a) Upon consummation of the Exchange Transactions, Executive will
acquire _______ Common Shares in exchange for the ________ Common Units
acquired by Executive pursuant to the Prior Agreement that were subject to
vesting (the "CARRIED COMMON UNITS"). The Common Shares so acquired by
Executive and described in this SECTION 1(a) are sometimes referred to
herein as "CARRIED SHARES." The Company will deliver to Executive copies of
the certificates representing such Common Shares. In exchange, Executive
hereby authorizes Holdings LLC and the Company to cancel the certificate or
certificates representing the Carried Common Units. The Common Shares
acquired by Executive in exchange for Common Units acquired by Executive
pursuant to the Prior Agreement that were not subject to vesting are
sometimes referred to herein as "CO-INVEST COMMON SHARES").
(b) Within 30 days after the acquisition of the Carried Shares,
Executive will make an effective election with the Internal Revenue Service
under Section 83(b) of the Internal Revenue Code and the regulations
promulgated thereunder in the form of EXHIBIT A attached hereto.
(c) Until released upon the occurrence of a Sale of the Company or a
Public Offering as provided below, all certificates evidencing the Carried
Shares shall be held by the Company for the benefit of Executive and the
other holder(s) of Carried Shares, if any. Upon the occurrence of a Sale of
the Company, the Company will return all certificates evidencing Carried
Shares to the record holders thereof. Upon consummation of a Public
Offering, the Company will return to the record holders thereof
certificates evidencing Vested Shares (as defined in SECTION 2(f) below).
(d) Executive acknowledges and agrees that neither the issuance of the
Carried Shares to Executive pursuant to the Exchange Agreement nor any
provision contained herein shall entitle Executive to remain in the
employment of the Company, Employer or any of their respective Subsidiaries
or affect the right of the Company or Employer to terminate Executive's
employment at any time for any reason, subject to the remaining terms of
this Agreement and any other agreement between Executive and any such
parties.
2. VESTING OF CARRIED SHARES.
(a) The Carried Shares issued to Executive in respect of Carried
Common Units shall be subject to vesting in the manner specified in this
SECTION 2.
(b) The Carried Shares issued to Executive in respect of Carried
Common Units that have vested pursuant to the Prior Agreement shall be
vested when issued to Executive pursuant to the Exchange Agreement and,
except as otherwise provided in this SECTION 2, the remaining Carried
Shares shall become vested in
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accordance with the following schedule, if and only if as of each such date
provided below, Executive has been continuously employed by the Company,
Employer or any of their respective Subsidiaries from the Effective Date
through and including such date:
CUMULATIVE PERCENTAGE OF
DATE ALL CARRIED SHARES VESTED
------------------------------- -----------------------------
February 6, 2005 32.00%
February 6, 2006 49.00%
February 6, 2007 66.00%
February 6, 2008 83.00%
February 6, 2009 100.00%
(c) Notwithstanding anything in SECTION 2(b) above to the contrary, in
the event that the Company consummates the Initial Public Offering, an
additional 25.5% of the Carried Shares (representing 18 months of
additional vesting) shall vest upon consummation of the Initial Public
Offering and the remaining unvested Carried Shares shall vest on a
straightline pro rata basis through February 6, 2009.
(d) If Executive ceases to be employed by the Company, Employer and
their respective Subsidiaries on any date other than an anniversary date
specified in the schedule above, the cumulative percentage of Carried
Shares to become vested shall be determined on a PRO RATA basis according
to the number of days elapsed since the Effective Date, or the most recent
anniversary date, as the case may be.
(e) Upon the occurrence of a Sale of the Company, all Carried Shares
which have not yet become vested shall become vested at the time of the
consummation of the Sale of the Company, if, as of such time, Executive has
been continuously employed by the Company, Employer or any of their
respective Subsidiaries from the Effective Date through and including such
date.
(f) Carried Shares that have become vested are referred to herein as
"VESTED SHARES." All Carried Shares that have not vested are referred to
herein as "UNVESTED SHARES."
3. REPURCHASE OPTION.
(a) Subject to the terms and conditions set forth in this SECTION 3(a)
and SECTION 4 below, the Company will have the right to repurchase (the
"SEPARATION REPURCHASE OPTION") from Executive and his transferees (other
than the Company) all or any portion of the Unvested Shares, in the event
Executive ceases to be employed by the Company, Employer and their
respective Subsidiaries for any reason (a "SEPARATION REPURCHASE EVENT").
The Company may assign its repurchase rights set forth in this SECTION 3(a)
to any Person.
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(b) For any Separation Repurchase Option, the purchase price for each
Unvested Share will be the lesser of (i) Executive's Original Cost of the
Carried Common Unit(s) or portion thereof in respect of which such Unvested
Share was issued to Executive and (ii) the Fair Market Value of such
Unvested Share as of the date upon which the Separation Repurchase Notice
is delivered.
(c) The Company (with the approval of the Board) may elect to purchase
all or any portion of the Unvested Shares by delivering written notice (the
"SEPARATION REPURCHASE NOTICE") to the holder or holders of such securities
within ninety (90) days after the Separation Repurchase Event. The
Separation Repurchase Notice will set forth the number of Unvested Shares
to be acquired from each holder, the aggregate consideration to be paid for
such shares and the time and place for the closing of the transaction. The
number of Unvested Shares to be repurchased by the Company shall first be
satisfied to the extent possible from the Unvested Shares held by Executive
at the time of delivery of the Separation Repurchase Notice. If the number
of Unvested Shares then held by Executive is less than the total number of
Unvested Shares that the Company has elected to purchase, the Company shall
purchase the remaining Unvested Shares elected to be purchased from the
Permitted Transferee(s) of Unvested Shares under this Agreement, PRO RATA
according to the number of Unvested Shares held by such Permitted
Transferee(s) at the time of delivery of such Separation Repurchase Notice
(determined as nearly as practicable to the nearest unit). The number of
Unvested Shares to be repurchased hereunder will be allocated among
Executive and the Permitted Transferee(s) of Unvested Shares (if any) PRO
RATA according to the number of Unvested Shares to be purchased from such
Person.
(d) The closing of the purchase of the Unvested Shares pursuant to the
Separation Repurchase Option shall take place on the date designated by the
Company in the Separation Repurchase Notice, which date shall not be more
than 30 days nor less than five days after the delivery of such notice. The
Company will pay for the Unvested Shares to be purchased by it pursuant to
the Separation Repurchase Option by first offsetting amounts outstanding
under any bona fide debts owed by Executive to the Company and will pay the
remainder of the purchase price by, at its option, (A) a check or wire
transfer of funds, (B) the issuance of a subordinated promissory note of
the Company bearing interest at a rate equal to the prime rate (as
published in THE WALL STREET JOURNAL from time to time) and having such
maturity as the Company shall determine in good faith, not to exceed three
years, or (C) any combination of clauses (A) and (B) as the Board may elect
in its discretion. The Company will be entitled to receive customary
representations and warranties from the sellers regarding such sale and to
require that all sellers' signatures be guaranteed.
(e) Notwithstanding anything to the contrary contained in this
Agreement, if the Fair Market Value of Unvested Shares is finally
determined to be an amount at least 10% greater than the per share
repurchase price for such Unvested Shares in the Separation Repurchase
Notice, the Company shall have the right to revoke its exercise of the
Separation Repurchase Option for all or any portion of the
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Unvested Shares elected to be repurchased by it by delivering notice of
such revocation in writing to the holders of Unvested Shares during the
thirty-day period beginning on the date that the Company is given written
notice that the Fair Market Value of a share of Unvested Shares was finally
determined to be an amount at least 10% greater than the per share
repurchase price for Unvested Shares set forth in the Separation Repurchase
Notice.
4. LIMITATIONS ON CERTAIN REPURCHASES. Notwithstanding anything to the
contrary contained in this Agreement, all repurchases of Unvested Shares by the
Company pursuant to the Separation Repurchase Option shall be subject to the
ability of the Company to pay the purchase price from its readily available cash
resources (without imposing any obligation on the Company to raise financing to
fund the repurchases) and also subject to applicable restrictions contained in
the
Delaware General Corporation Law or such other governing corporate law,
applicable federal and state securities laws, and in the Company's and its
Subsidiaries' debt and equity financing agreements. If any such restrictions
prohibit (A) the repurchase of Unvested Shares hereunder which the Company is
otherwise entitled to make or (B) dividends or other transfers of funds from one
or more Subsidiaries to the Company to enable such repurchases, then the Company
may make such repurchases as soon as it is permitted to make repurchases or
receive funds from Subsidiaries under such restrictions. Furthermore, in the
event of a disagreement in accordance with the terms herein relating to the
determination of the Fair Market Value of any Unvested Shares, the time periods
described herein with respect to purchases of Executive Securities under SECTION
3 herein shall be tolled until any such determination has been made in
accordance with the terms provided herein.
5. RESTRICTIONS ON TRANSFER OF EXECUTIVE SECURITIES.
(a) TRANSFER OF EXECUTIVE SECURITIES. The holders of Executive
Securities shall not Transfer any interest in any Executive Securities,
except pursuant to (i) the provisions of SECTION 3 hereof, (ii) the
provisions of SECTION 5(b) below or (iii) a Sale of the Company approved by
the Board.
(b) CERTAIN PERMITTED TRANSFERS. The restrictions in this SECTION 5
will not apply with respect to any Transfer of (i) Executive Securities
made pursuant to applicable laws of descent and distribution or to such
Person's legal guardian in the case of any mental incapacity or among such
Person's Family Group or (ii) Common Shares at such time as the Purchasers
sell Common Shares in a Public Sale, but in the case of this clause (ii)
only an amount of shares (the "TRANSFER AMOUNT") equal to the lesser of (A)
the sum of the number of Vested Shares and Co-Invest Common Shares owned by
Executive and (B) the result of the number of Common Shares owned by
Executive multiplied by a fraction (the "TRANSFER FRACTION"), the numerator
of which is the number of Common Shares sold by the Purchasers in such
Public Sale and the denominator of which is the total number of Common
Shares held by the Purchasers prior to the Public Sale; PROVIDED that, if
at the time of a Public Sale of Common Shares by the Purchasers, Executive
chooses not to Transfer the Transfer Amount, Executive shall retain the
right to Transfer an amount of Common Shares at a future date equal to the
lesser of (x)
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the sum of the number of Vested Shares and Co-Invest Common Shares owned by
Executive at such future date and (y) the result of the number of Common
Shares owned by Executive at such future date multiplied by the Transfer
Fraction; PROVIDED further that the restrictions contained in this SECTION
5 will continue to be applicable to the Executive Securities after any
Transfer of the type referred to in clause (i) above and the transferees of
such Executive Securities must agree in writing to be bound by the
provisions of this Agreement and the Registration Agreement. Any transferee
of Executive Securities pursuant to a Transfer in accordance with the
provisions of clause (i) of this SECTION 5(b) is herein referred to as a
"PERMITTED TRANSFEREE." Upon the Transfer of Executive Securities pursuant
to this SECTION 5(b), the transferring holder of Executive Securities will
deliver a written notice (a "TRANSFER NOTICE") to the Company. In the case
of a Transfer pursuant to clause (i) hereof, the Transfer Notice will
disclose in reasonable detail the identity of the Permitted Transferee(s).
(c) TERMINATION OF RESTRICTIONS. The restrictions set forth in this
SECTION 5 will continue with respect to each share of Executive Securities
until the earlier of (i) the date on which such share of Executive
Securities has been transferred in a Public Sale permitted by this SECTION
5, or (ii) the consummation of a Sale of the Company.
6. ADDITIONAL RESTRICTIONS ON TRANSFER OF EXECUTIVE SECURITIES.
(a) LEGEND. The certificates representing the Executive Securities
will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS
OF [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER,
CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN
AMENDED AND RESTATED
SENIOR MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN
EXECUTIVE OF THE COMPANY AND OTHER PARTIES, DATED AS OF JANUARY 28, 2005. A
COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) OPINION OF COUNSEL. No holder of Executive Securities may Transfer
any Executive Securities (except pursuant to SECTION 3 or SECTION 5(b) of
this Agreement or an effective registration statement under the Securities
Act) without
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first delivering to the Company a written notice describing in reasonable
detail the proposed Transfer, together with an opinion of counsel
(reasonably acceptable in form and substance to the Company) that neither
registration nor qualification under the Securities Act and applicable
state securities laws is required in connection with such transfer. In
addition, if the holder of the Executive Securities delivers to the Company
an opinion of counsel that no subsequent Transfer of such Executive
Securities shall require registration under the Securities Act, the Company
shall promptly upon such contemplated Transfer deliver new certificates for
such Executive Securities that do not bear the Securities Act portion of
the legend set forth in SECTION 6(a). If the Company is not required to
deliver new certificates for such Executive Securities not bearing such
legend, the holder thereof shall not Transfer the same until the
prospective transferee has confirmed to the Company in writing its
agreement to be bound by the conditions contained in this SECTION 6.
PROVISIONS RELATING TO EMPLOYMENT
7. EMPLOYMENT. Employer agrees to employ Executive and Executive accepts
such employment for the period beginning as of the date of the Prior Agreement
and ending upon his separation pursuant to SECTION 7(c) hereof (the "EMPLOYMENT
PERIOD").
(a) POSITION AND DUTIES.
(i) During the Employment Period, Executive shall serve as
the Chief Executive Officer of Employer and shall have the normal duties,
responsibilities and authority implied by such position, including, without
limitation, the responsibilities associated with all aspects of the daily
operations of Employer and the identification, negotiation, completion and
integration of any acquisitions made by the Company, Employer or any of
their respective Subsidiaries, subject to the power of the Board to expand
or limit such duties, responsibilities and authority and to override
actions of the Chief Executive Officer.
(ii) Executive shall report to the Board, and Executive shall
devote his best efforts and his full business time and attention to the
business and affairs of the Company, Employer and their Subsidiaries.
(b) SALARY, BONUS AND BENEFITS. During the Employment Period, Employer
will pay Executive a base salary of $425,000 per annum (the "ANNUAL BASE
SALARY"). During fiscal year 2005, the Board shall develop a new bonus
program which may incorporate subjective and objective criteria for bonus
achievement different from the criteria contained in the existing
Medtech/Denorex bonus program; PROVIDED, HOWEVER, THAT the maximum bonus
payment potentials to Executive will not be decreased from those provided
in the existing Medtech/Denorex bonus program. In addition, during the
Employment Period, Executive will be entitled to such other benefits
approved by the Board
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and made available to the senior management of the Company, Employer and
their Subsidiaries, which shall include no less than four (4) weeks paid
vacation per calendar year and medical, dental, life and disability
insurance. The Board, on a basis consistent with past practice, shall
review the Annual Base Salary of Executive and may increase the Annual Base
Salary by such amount as the Board, in its sole discretion, shall deem
appropriate. The term "Annual Base Salary" as used in this Agreement shall
refer to the Annual Base Salary as it may be so increased.
(c) SEPARATION. The Employment Period will continue until (i)
Executive's death, Disability or resignation from employment with the
Company, Employer and their respective Subsidiaries or (ii) the Company,
Employer and their respective Subsidiaries decide to terminate Executive's
employment with or without Cause. If (A) Executive's employment is
terminated without Cause pursuant to clause (ii) above or (B) Executive
resigns from employment with the Company, Employer or any of their
respective Subsidiaries for Good Reason, then during the period commencing
on the date of termination of the Employment Period and ending on the first
anniversary of the date of termination (the "SEVERANCE PERIOD"), Employer
shall pay to Executive, in equal installments on the Employer's regular
salary payment dates, an aggregate amount equal to (I) his Annual Base
Salary, plus (II) an amount equal to the annual bonus, if any, paid or
payable to Executive by Employer for the last fiscal year ended prior to
the date of termination. In addition, if Executive is entitled on the date
of termination to coverage under the medical and prescription portions of
the Welfare Plans, such coverage shall continue for Executive and
Executive's covered dependents for a period ending on the first anniversary
of the date of termination at the active employee cost payable by Executive
with respect to those costs paid by Executive prior to the date of
termination; PROVIDED, that this coverage will count towards the depletion
of any continued health care coverage rights that Executive and Executive's
dependents may have pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"); PROVIDED further, that
Executive's or Executive's covered dependents' rights to continued health
care coverage pursuant to this SECTION 7(c) shall terminate at the time
Executive or Executive's covered dependents become covered, as described in
COBRA, under another group health plan, and shall also terminate as of the
date Employer ceases to provide coverage to its senior executives generally
under any such Welfare Plan. Notwithstanding the foregoing, (I) Executive
shall not be entitled to receive any payments or benefits pursuant to this
SECTION 7(c) unless Executive has executed and delivered to Employer a
general release in form and substance satisfactory to Employer and (II)
Executive shall be entitled to receive such payments and benefits only so
long as Executive has not breached the provisions of SECTIONS 8 or 9
hereof. The release described in the foregoing sentence shall not require
Executive to release any claims for any vested employee benefits, workers
compensation benefits covered by insurance or self-insurance, claims to
indemnification to which Executive may be entitled under the Company's or
its Subsidiaries' certificate(s) of incorporation, by-laws or under any of
the Company's or its Subsidiaries' directors or officers insurance
policy(ies) or
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applicable law, or equity claims to contribution from the Company or its
Subsidiaries or any other Person to which Executive is entitled as a matter
of law in respect of any claim made against Executive for an alleged act or
omission in Executive's official capacity and within the scope of
Executive's duties as an officer, director or employee of the Company or
its Subsidiaries. Not later than eighteen (18) months following the
termination of Executive's employment, the Company and its Subsidiaries for
which the Executive has acted in the capacity of a senior manager, shall
sign and deliver to Executive a release of claims that the Company or its
Subsidiaries has against Executive; PROVIDED THAT, such release shall not
release any claims that the Company or its Subsidiaries commenced prior to
the date of the release(s), any claims relating to matters actively
concealed by Executive, any claims to contribution from Executive to which
the Company or its Subsidiaries are entitled as a matter of law or any
claims arising out of mistaken indemnification by the Company or any of its
Subsidiaries. Except as otherwise provided in this SECTION 7(c) or in the
Employer's employee benefit plans or as otherwise required by applicable
law, Executive shall not be entitled to any other salary, compensation or
benefits after termination of Executive's employment with Employer.
8. CONFIDENTIAL INFORMATION.
(a) OBLIGATION TO MAINTAIN CONFIDENTIALITY. Executive acknowledges
that the information, observations and data (including trade secrets)
obtained by him during the course of his performance under this Agreement
concerning the business or affairs of the Company, Employer and their
respective Subsidiaries and Affiliates ("CONFIDENTIAL INFORMATION") are the
property of the Company, Employer or such Subsidiaries and Affiliates,
including information concerning acquisition opportunities in or reasonably
related to the Company's and Employer's business or industry of which
Executive becomes aware during the Employment Period. Therefore, Executive
agrees that he will not disclose to any unauthorized Person or use for his
own account (for his commercial advantage or otherwise) any Confidential
Information without the Board's written consent, unless and to the extent
that the Confidential Information, (i) becomes generally known to and
available for use by the public other than as a result of Executive's acts
or omissions to act, (ii) was known to Executive prior to Executive's
employment with Employer, the Company or any of their Subsidiaries and
Affiliates or (iii) is required to be disclosed pursuant to any applicable
law, court order or other governmental decree. Executive shall deliver to
the Company at a Separation, or at any other time the Company may request,
all memoranda, notes, plans, records, reports, computer tapes, printouts
and software and other documents and data (and copies thereof) relating to
the Confidential Information, Work Product (as defined below) or the
business of the Company, Employer and their respective Subsidiaries and
Affiliates (including, without limitation, all acquisition prospects, lists
and contact information) which he may then possess or have under his
control.
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(b) OWNERSHIP OF PROPERTY. Executive acknowledges that all
discoveries, concepts, ideas, inventions, innovations, improvements,
developments, methods, processes, programs, designs, analyses, drawings,
reports, patent applications, copyrightable work and mask work (whether or
not including any Confidential Information) and all registrations or
applications related thereto, all other proprietary information and all
similar or related information (whether or not patentable) that relate to
the Company's, Employer's or any of their respective Subsidiaries' or
Affiliates' actual or anticipated business, research and development, or
existing or future products or services and that are conceived, developed,
contributed to, made, or reduced to practice by Executive (either solely or
jointly with others) while employed by the Company, Employer or any of
their respective Subsidiaries or Affiliates (including any of the foregoing
that constitutes any proprietary information or records) ("WORK PRODUCT")
belong to the Company, Employer or such Subsidiary or Affiliate and
Executive hereby assigns, and agrees to assign, all of the above Work
Product to the Company, Employer or to such Subsidiary or Affiliate. Any
copyrightable work prepared in whole or in part by Executive in the course
of his work for any of the foregoing entities shall be deemed a "work made
for hire" under the copyright laws, and the Company, Employer or such
Subsidiary or Affiliate shall own all rights therein. To the extent that
any such copyrightable work is not a "work made for hire," Executive hereby
assigns and agrees to assign to the Company, Employer or such Subsidiary or
Affiliate all right, title, and interest, including without limitation,
copyright in and to such copyrightable work. Executive shall promptly
disclose such Work Product and copyrightable work to the Board and perform
all actions reasonably requested by the Board (whether during or after the
Employment Period) to establish and confirm the Company's, Employer's or
such Subsidiary's or Affiliate's ownership (including, without limitation,
assignments, consents, powers of attorney, and other instruments).
(c) THIRD PARTY INFORMATION. Executive understands that the Company,
Employer and their respective Subsidiaries and Affiliates will receive from
third parties confidential or proprietary information ("THIRD PARTY
INFORMATION") subject to a duty on the Company's, Employer's and their
respective Subsidiaries' and Affiliates' part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During the Employment Period and thereafter, and without in any
way limiting the provisions of SECTION 8(a) above, Executive will hold
Third Party Information in the strictest confidence and will not disclose
to anyone (other than personnel and consultants of the Company, Employer or
their respective Subsidiaries and Affiliates who need to know such
information in connection with their work for the Company, Employer or any
of their respective Subsidiaries and Affiliates) or use, except in
connection with his work for the Company, Employer or any of their
respective Subsidiaries and Affiliates, Third Party Information unless
expressly authorized by a member of the Board (other than himself if
Executive is on the Board) in writing.
(d) USE OF INFORMATION OF PRIOR EMPLOYERS. During the Employment
Period and thereafter, Executive will not improperly use or disclose any
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confidential information or trade secrets, if any, of any former employers
or any other Person to whom Executive has an obligation of confidentiality,
and will not bring onto the premises of the Company, Employer or any of
their respective Subsidiaries or Affiliates any unpublished documents or
any property belonging to any former employer or any other Person to whom
Executive has an obligation of confidentiality unless consented to in
writing by the former employer or Person. Executive will use in the
performance of his duties only information which is (i) generally known and
used by persons with training and experience comparable to Executive's and
which is (x) common knowledge in the industry or (y) otherwise legally in
the public domain, (ii) otherwise provided or developed by the Company,
Employer or any of their respective Subsidiaries or Affiliates or (iii) in
the case of materials, property or information belonging to any former
employer or other Person to whom Executive has an obligation of
confidentiality, approved for such use in writing by such former employer
or Person.
9. NONCOMPETITION AND NONSOLICITATION. Executive acknowledges that in the
course of his employment with Employer he will become familiar with the
Company's, Employer's and their respective Subsidiaries' trade secrets and with
other confidential information concerning the Company, Employer and such
Subsidiaries and that his services will be of special, unique and extraordinary
value to the Company, Employer and such Subsidiaries. Therefore, Executive
agrees that:
(a) NONCOMPETITION. During the Employment Period and also during the
period commencing on the date of termination of the Employment Period and
ending on the first anniversary of the date of termination, he shall not
anywhere in the United States, directly or indirectly, own, manage,
control, participate in, consult with, render services for, or in any
manner engage in any business (i) competing with a brand of the Company,
Employer, Medtech, Denorex, Spic and Span, Comet, Prestige, any business
acquired by such Persons, or any Subsidiaries of such Persons, representing
10% or more of the consolidated revenues or EBITDA of the Company and its
Subsidiaries for the trailing 12 months ending on the last day of the last
completed calendar month immediately preceding the date of termination of
the Employment Period or (ii) in which the Company, Employer Medtech,
Denorex, any business acquired by such Persons, or any Subsidiaries of such
Persons has conducted discussions or has requested and received information
relating to the acquisition of such business by such Person (x) within one
year prior to the Separation and (y) during the Severance Period, if any.
Nothing herein shall prohibit Executive from being a passive owner of not
more than 2% of the outstanding stock of any class of a corporation that is
publicly traded, so long as Executive has no active participation in the
business of such corporation.
(b) NONSOLICITATION. During the Employment Period and also during the
period commencing on the date of termination of the Employment Period and
ending on the first anniversary of the date of termination, Executive shall
not directly or indirectly through another entity (i) induce or attempt to
induce any employee of the Company, Employer or any of their respective
Subsidiaries to
11
leave the employ of the Company, Employer or any such Subsidiary, or in any
way interfere with the relationship between the Company, Employer and any
of their respective Subsidiaries and any employee thereof, (ii) hire any
person who was an employee of the Company, Employer or any of their
respective Subsidiaries within 180 days after such person ceased to be an
employee of the Company, Employer or any of their respective Subsidiaries
(PROVIDED, HOWEVER, THAT such restriction shall not apply for a particular
employee if the Company has provided its written consent to such hire,
which consent, in the case of any person who was not a key employee of the
Company, Employer or any of their respective Subsidiaries, shall not be
unreasonably withheld), (iii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company, Employer or
any of their respective Subsidiaries to cease doing business with the
Company, Employer or any such Subsidiary or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company, Employer or any Subsidiary or (iv) directly or
indirectly acquire or attempt to acquire an interest in any business
relating to the business of the Company, Employer or any of their
respective Subsidiaries and with which the Company, Employer and any of
their respective Subsidiaries has conducted discussions or has requested
and received information relating to the acquisition of such business by
the Company, Employer or any of their respective Subsidiaries in the two
year period immediately preceding a Separation.
(c) ENFORCEMENT. If, at the time of enforcement of SECTION 8 or this
SECTION 9, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree
that the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and
that the court shall be allowed to revise the restrictions contained herein
to cover the maximum duration, scope and area permitted by law. Because
Executive's services are unique and because Executive has access to
Confidential Information, the parties hereto agree that money damages would
be an inadequate remedy for any breach of this Agreement. Therefore, in the
event of a breach or threatened breach of this Agreement, the Company,
Employer, their respective Subsidiaries or their successors or assigns may,
in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations
of, the provisions hereof (without posting a bond or other security).
(d) ADDITIONAL ACKNOWLEDGMENTS. Executive acknowledges that the
provisions of this SECTION 9 are in consideration of: (i) employment with
the Employer, (ii) the issuance of the Executive Securities by the Company
and (iii) additional good and valuable consideration as set forth in this
Agreement. In addition, Executive agrees and acknowledges that the
restrictions contained in SECTION 8 and this SECTION 9 do not preclude
Executive from earning a livelihood, nor do they unreasonably impose
limitations on Executive's ability to earn a living. In addition, Executive
acknowledges (i) that the business of the Company, Employer and their
respective Subsidiaries will be conducted throughout the
12
United States, (ii) notwithstanding the state of incorporation or principal
office of the Company, Employer or any of their respective Subsidiaries, or
any of their respective executives or employees (including the Executive),
it is expected that the Company and Employer will have business activities
and have valuable business relationships within its industry throughout the
United States and (iii) as part of his responsibilities, Executive will be
traveling throughout the United States in furtherance of Employer's
business and its relationships. Executive agrees and acknowledges that the
potential harm to the Company and Employer of the non-enforcement of
SECTION 8 and this SECTION 9 outweighs any potential harm to Executive of
its enforcement by injunction or otherwise. Executive acknowledges that he
has carefully read this Agreement and has given careful consideration to
the restraints imposed upon Executive by this Agreement, and is in full
accord as to their necessity for the reasonable and proper protection of
confidential and proprietary information of the Company, Employer and their
Subsidiaries now existing or to be developed in the future. Executive
expressly acknowledges and agrees that each and every restraint imposed by
this Agreement is reasonable with respect to subject matter, time period
and geographical area.
GENERAL PROVISIONS
10. DEFINITIONS.
"AFFILIATE" means, (i) with respect to any Person, any Person that
controls, is controlled by or is under common control with such Person or an
Affiliate of such Person, and (ii) with respect to any Purchaser, any general or
limited partner of such Purchaser, any employee or owner of any such partner, or
any other Person controlling, controlled by or under common control with such
Purchaser.
"BOARD" means the Company's board of directors (or its equivalent).
"CAUSE" means (i) the intentional or knowing commission of a felony or a
crime involving moral turpitude or the commission of any other act or omission
involving dishonesty or fraud with respect to the Company, Employer or any of
their respective Subsidiaries or any of their customers or suppliers, (ii)
substantial and repeated failure to perform duties of the office held by
Executive as reasonably directed by the Board, (iii) gross negligence or willful
misconduct with respect to the Company, Employer or any of their respective
Subsidiaries, (iv) conduct tending to bring the Company, Employer or any of
their respective Subsidiaries into substantial public disgrace or disrepute or
(v) any breach by Executive of SECTIONS 8 or 9 of this Agreement.
Notwithstanding the foregoing, if it is alleged or determined that actions taken
by Executive caused the Company, Employer or any of their respective
Subsidiaries to engage in illegal activities or operations, the taking of such
actions by Executive shall not constitute "Cause" hereunder if Executive had a
reasonable and good faith belief that such actions were not in violation of any
law, rule, regulation or court order, were in the best interests of the Company,
Employer and their respective Subsidiaries and were taken in the ordinary course
of business.
13
"COMET" means The Comet Products Corporation, a
Delaware corporation.
"CREDIT AGREEMENT" means the Credit Agreement, dated as of April 6, 2004,
among Employer, Prestige Brands International, LLC, a
Delaware limited liability
company, the lenders and issuers party thereto, Citicorp North America, Inc., as
administrative agent and Tranche C Agent (as defined therein), Bank of America,
N.A., as syndication agent for the lenders and issuers, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a
division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc., as documentation
agent for the lenders and issuers, and the other parties named therein, as the
same may be amended, supplemented or otherwise modified from time to time, at
any renewal, extension, refunding, restructuring, replacement or refinancing
thereof (whether with the original agent or lenders or another agent or agents
or other lenders and whether provided under the original Credit Agreement or any
other credit agreement).
"DENOREX" means The Denorex Company, a Delaware corporation.
"DISABILITY" means the disability of Executive caused by any physical or
mental injury, illness or incapacity as a result of which Executive is unable to
effectively perform the essential functions of Executive's duties as determined
by the Board in good faith.
"EBITDA" means "Adjusted EBITDA" as such term is defined in the Credit
Agreement.
"EXECUTIVE SECURITIES" means all Class B Preferred Units of Prestige
Preferred Holdings, LLC acquired by Executive pursuant to the Prior Agreement
and Common Shares acquired by Executive pursuant to the Exchange Agreement.
Executive Securities will continue to be Executive Securities in the hands of
any holder other than Executive (except for the Company and transferees in a
Public Sale, which transferees shall not be subject to the provisions of this
Agreement with respect to such securities), and except as otherwise provided
herein, each such other holder of Executive Securities will succeed to all
rights and obligations attributable to Executive as a holder of Executive
Securities hereunder. Executive Securities (or, individually, any particular
type of equity security included therein) will also include equity securities of
the Company issued with respect to Executive Securities (or, individually, any
particular type of equity security included therein) by way of a stock split,
stock dividend, conversion, or other recapitalization. For the avoidance of
doubt, all Unvested Shares shall remain Unvested Shares after a Transfer
thereof, unless such Transfer is to the Company or a transferee in a Public
Sale.
"FAIR MARKET VALUE" of each share of Executive Securities means the average
of the closing prices of the sales of such Executive Securities on all
securities exchanges on which such Executive Securities may at the time be
listed, or, if there have been no sales on any such exchange on any day, the
average of the highest bid and lowest asked prices on all such exchanges at the
end of such day, or, if on any day such Executive Securities are not so listed,
the average of the representative bid and asked prices quoted in the NASDAQ
System as of 4:00 P.M., New York time, or, if on any day such Executive
Securities are not quoted in the NASDAQ System, the average of the highest bid
and
14
lowest asked prices on such day in the domestic over-the-counter market as
reported by the National Quotation Bureau Incorporated, or any similar successor
organization, in each such case averaged over a period of 21 days consisting of
the day as of which the Fair Market Value is being determined and the 20
consecutive business days prior to such day. If at any time such Executive
Securities are not listed on any securities exchange or quoted in the NASDAQ
System or the over-the-counter market, the Fair Market Value will be the fair
value of such Executive Securities as determined in good faith by the Board. If
Executive reasonably disagrees with such determination, Executive shall deliver
to the Board a written notice of objection (an "OBJECTION") within thirty (30)
days after delivery of the Separation Repurchase Notice. Upon receipt of
Executive's Objection, the Board and Executive will negotiate in good faith to
agree on such Fair Market Value. If such agreement is not reached within 20 days
after the delivery of the Objection, Fair Market Value shall be determined by an
appraiser jointly selected by the Board and Executive, which appraiser shall
submit to the Board and Executive a report within 30 days of its engagement
setting forth such determination. If the parties are unable to agree on an
appraiser within 25 days after delivery of the Objection, within seven days,
each party shall submit the names of four nationally recognized firms that are
engaged in the business of valuing non-public securities, and each party shall
be entitled to strike two names from the other party's list of firms, and the
appraiser shall be selected by lot from the remaining four investment banking
firms. The expenses of such appraiser shall be borne equally by Executive and
the Company. The determination of such appraiser as to Fair Market Value shall
be final and binding upon all parties.
"FAMILY GROUP" means a Person's spouse and descendants (whether natural or
adopted), and any trust, family limited partnership, limited liability company
or other entity wholly owned, directly or indirectly, by such Person or such
Person's spouse and/or descendants that is and remains solely for the benefit of
such Person and/or such Person's spouse and/or descendants and any retirement
plan for such Person.
"GOOD REASON" means (i) any material diminution in Executive's position,
title, authority, powers, functions, duties or responsibilities with Employer,
(ii) the permanent relocation or transfer of Employer's principal office outside
a 30 mile radius from Irvington, New York or (iii) any failure of Employer to
comply with the Annual Base Salary and bonus provisions of SECTION 7(b) hereof.
"MEDTECH" means Medtech Holdings, Inc., a Delaware corporation.
"ORIGINAL COST" means, with respect to each Carried Common Unit acquired
pursuant to the Prior Agreement, $0.10 (each as proportionately adjusted for all
subsequent stock splits, stock dividends and other recapitalizations).
"PERSON" means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, investment fund, any other business entity and a
governmental entity or any department, agency or political subdivision thereof.
"PRESTIGE" means Prestige Brands International, Inc., a Virginia
corporation.
15
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of equity securities of the Company or a
corporate successor to the Company.
"PUBLIC SALE" means (i) any sale pursuant to a registered public offering
under the Securities Act or (ii) any sale to the public pursuant to Rule 144
promulgated under the Securities Act effected through a broker, dealer or market
maker (other than pursuant to Rule 144(k) prior to a Public Offering).
"PURCHASER" has the meaning set forth in the Exchange Agreement.
"REGISTRATION AGREEMENT" means the Registration Rights Agreement, dated as
of February 6, 2004, by and among the Company and certain of its
securityholders, as amended from time to time pursuant to its terms.
"SALE OF THE COMPANY" means any transaction or series of transactions
pursuant to which any Person or group of related Persons other than the
Purchasers or their Affiliates in the aggregate acquire(s) (i) equity securities
of the Company possessing the voting power (other than voting rights accruing
only in the event of a default, breach or event of noncompliance) to elect a
majority of the Board (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's equity, securityholder or voting
agreement, proxy, power of attorney or otherwise) or (ii) all or substantially
all of the Company's assets determined on a consolidated basis; PROVIDED that a
Public Offering shall not constitute a Sale of the Company.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"SEPARATION" means the cessation of employment of Executive with the
Company, Employer and their respective Subsidiaries for any reason.
"SPIC AND SPAN" means The Spic and Span Company, a Delaware corporation.
"SUBSIDIARY" means, with respect to any Person, any corporation, limited
liability company, partnership, association, or business entity of which (i) if
a corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers, or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation), a
majority of partnership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association, or other business entity
(other than a corporation) if such Person or Persons shall be allocated a
majority of limited liability company, partnership, association, or other
business entity gains or losses or shall be or control any managing director or
general partner of such limited liability company, partnership, association, or
other business entity. For purposes hereof, references to a "SUBSIDIARY" of
16
any Person shall be given effect only at such times that such Person has one or
more Subsidiaries, and, unless otherwise indicated, the term "Subsidiary" refers
to a Subsidiary of the Company.
"TCW/CRESCENT LENDERS" means collectively, TCW/Crescent Mezzanine Partners
III, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust III, a
Delaware business trust, and TCW/Crescent Mezzanine Partners III Netherlands,
L.P., a Delaware limited partnership, any of their Affiliates or any investment
fund for whom Trust Company of the West or any Affiliate of Trust Company of the
West acts as an account manager.
"TCW/CRESCENT PURCHASERS" means collectively, TCW/Crescent Mezzanine
Partners III, L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Trust
III, a Delaware business trust, and TCW/Crescent Mezzanine Partners III
Netherlands, L.P., a Delaware limited partnership, any of their Affiliates or
any investment fund for whom Trust Company of the West or any Affiliate of Trust
Company of the West acts as an account manager.
"TRANSFER" means to sell, transfer, assign, pledge or otherwise dispose of
(whether with or without consideration and whether voluntarily or involuntarily
or by operation of law).
"WELFARE PLANS" mean the welfare benefit plans, practices, policies and
programs provided by Employer to the extent applicable generally to other senior
executives of the Company.
11. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class mail (postage
prepaid and return receipt requested) or sent by reputable overnight courier
service (charges prepaid) to the recipient at the address below indicated:
IF TO EMPLOYER:
Prestige Brands, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
WITH COPIES TO:
GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
17
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO THE COMPANY:
Prestige International Holdings, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
WITH COPIES TO:
GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO EXECUTIVE:
▇▇▇▇▇ ▇. ▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
WITH A COPY TO:
Ford ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO THE PURCHASERS:
See the attached PURCHASER NOTICE SCHEDULE.
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
12. GENERAL PROVISIONS.
(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted
Transfer of any Executive Securities in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on
its
18
books or treat any purported transferee of such Executive Securities as the
owner of such equity for any purpose.
(b) SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
(c) COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the
complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way, including, but not limited to, the Employment Letter
Agreement, dated February 1, 2001, between Executive and The Spic and Span
Company.
(d) NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against
any party.
(e) COUNTERPARTS. This Agreement may be executed and delivered in
separate counterparts (including by means of facsimile), each of which is
deemed to be an original and all of which taken together constitute one and
the same agreement.
(f) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Purchasers and their respective successors and
assigns (including subsequent holders of Executive Securities); provided
that the rights and obligations of Executive under this Agreement shall not
be assignable except in connection with a permitted transfer of Executive
Securities hereunder.
(g) CHOICE OF LAW. The law of the State of Delaware will govern all
questions concerning the relative rights of the Company, Employer and its
securityholders. All other questions concerning the construction, validity
and interpretation of this Agreement and the exhibits hereto will be
governed by and construed in accordance with the internal laws of the State
of Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(h) MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX TRANSACTIONS ARE
19
MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER
THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED
BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST
COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH
PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG
ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE,
ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT,
THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP ESTABLISHED
AMONG THE PARTIES HEREUNDER.
(i) EXECUTIVE'S COOPERATION. During the Employment Period and
thereafter, Executive shall cooperate with the Company, Employer and their
respective Subsidiaries and Affiliates in any disputes with third parties,
internal investigation or administrative, regulatory or judicial proceeding
as reasonably requested by the Company (including, without limitation,
Executive being available to the Company upon reasonable notice for
interviews and factual investigations, appearing at the Company's request
to give testimony without requiring service of a subpoena or other legal
process, volunteering to the Company all pertinent information and turning
over to the Company all relevant documents which are or may come into
Executive's possession, all at times and on schedules that are reasonably
consistent with Executive's other permitted activities and commitments). In
the event the Company requires Executive's cooperation in accordance with
this paragraph after the Employment Period, the Company shall reimburse
Executive for reasonable travel expenses (including lodging and meals, upon
submission of receipts) and compensate Executive for his time at a rate
that is mutually agreeable to Executive and the Company.
(j) REMEDIES. Each of the parties to this Agreement (and the
Purchasers as third-party beneficiaries) will be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs
(including attorney's fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The
parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that
any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent
any violations of the provisions of this Agreement.
(k) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company,
20
Employer, Executive and the Majority Holders (as defined in the Exchange
Agreement).
(l) INSURANCE. The Company, at its discretion, may apply for and
procure in its own name and for its own benefit life and/or disability
insurance on Executive in any amount or amounts considered available.
Executive agrees to cooperate in any medical or other examination, supply
any information, and to execute and deliver any applications or other
instruments in writing as may be reasonably necessary to obtain and
constitute such insurance. Executive hereby represents that he has no
reason to believe that his life is not insurable at rates now prevailing
for healthy men of his age.
(m) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or holiday in
the state in which the Company's chief executive office is located, the
time period shall be automatically extended to the business day immediately
following such Saturday, Sunday or holiday.
(n) INDEMNIFICATION AND REIMBURSEMENT OF PAYMENTS ON BEHALF OF
EXECUTIVE. The Company and its Subsidiaries shall be entitled to deduct or
withhold from any amounts owing from the Company or any of its Subsidiaries
to Executive any federal, state, local or foreign withholding taxes, excise
taxes, or employment taxes ("TAXES") imposed with respect to Executive's
compensation or other payments from the Company or any of its Subsidiaries
or Executive's ownership interest in the Company, including, without
limitation, wages, bonuses, dividends, the receipt or exercise of equity
options and/or the receipt or vesting of restricted equity. In the event
the Company or any of its Subsidiaries does not make such deductions or
withholdings, Executive shall indemnify the Company and its Subsidiaries
for any amounts paid with respect to any such Taxes, together with any
interest, penalties and related expenses thereto.
(o) REASONABLE EXPENSES. Employer agrees to pay the reasonable fees
and expenses of Executive's counsel arising in connection with the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated by this Agreement.
(p) TERMINATION. This Agreement (except for the provisions of SECTIONS
7(a) and (b)) shall survive a Separation and shall remain in full force and
effect after such Separation.
(q) ADJUSTMENTS OF NUMBERS. All numbers set forth herein that refer to
share prices or amounts will be appropriately adjusted to reflect share
splits, share dividends, combinations of shares and other recapitalizations
affecting the subject class of equity.
(r) DEEMED TRANSFER OF EXECUTIVE SECURITIES. If the Company (and/or
any other Person acquiring securities) shall make available, at the time
and place and
21
in the amount and form provided in this Agreement, the consideration for
the Executive Securities to be repurchased in accordance with the
provisions of this Agreement, then from and after such time, the Person
from whom such shares are to be repurchased shall no longer have any rights
as a holder of such shares (other than the right to receive payment of such
consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and
the Company (and/or any other Person acquiring securities) shall be deemed
the owner and holder of such shares, whether or not the certificates
therefor have been delivered as required by this Agreement.
(s) NO PLEDGE OR SECURITY INTEREST. The purpose of the Company's
retention of Executive's certificates is solely to facilitate the
repurchase provisions set forth in SECTION 3 and does not constitute a
pledge by Executive of, or the granting of a security interest in, the
underlying equity.
(t) RIGHTS GRANTED TO GTCR FUND VIII AND ITS AFFILIATES. Any rights
granted to GTCR Fund VIII, GTCR Fund VIII/B, GTCR Co-Invest and their
Affiliates hereunder may also be exercised (in whole or in part) by their
designees.
* * * * *
22
IN WITNESS WHEREOF, the parties hereto have executed this
Senior Management
Agreement on the date first written above.
PRESTIGE BRANDS HOLDINGS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PRESTIGE INTERNATIONAL HOLDINGS, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PRESTIGE BRANDS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Agreed and Accepted:
GTCR FUND VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By:
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR FUND VIII/B, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By:
---------------------------------
B-1
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CO-INVEST II, L.P.
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
Its: General Partner
By:
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Principal
GTCR CAPITAL PARTNERS, L.P.
By: GTCR Mezzanine Partners, L.P.
Its: General Partner
By: GTCR Partners VI, L.P.
Its: General Partner
By: GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.C.
Its: General Partner
By:
---------------------------------
Name:
Its: Principal
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.
TCW/CRESCENT MEZZANINE TRUST III
TCW/CRESCENT MEZZANINE PARTNERS III
NETHERLANDS, L.P.
By: TCW/Crescent Mezzanine
Management III, L.L.C.,
its Investment Manager
By: TCW Asset Management Company,
its Sub-Advisor
By:
---------------------------------
B-2
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Director
B-3
EXHIBIT A
__________, 2005
PROTECTIVE ELECTION TO INCLUDE MEMBERSHIP
INTEREST IN GROSS INCOME PURSUANT TO
SECTION 83(b) OF THE INTERNAL REVENUE CODE
The undersigned purchased shares of Common Stock, par value $.01 per
share (the "SHARES"), of
Prestige Brands Holdings, Inc. (the "COMPANY") on
January 28, 2005. Under certain circumstances, the Company has the right to
repurchase the Shares at cost from the undersigned (or from the holder of the
Shares, if different from the undersigned) should the undersigned cease to be
employed by the Company and its subsidiaries. Hence, the Shares are subject to a
substantial risk of forfeiture that may not be avoided by a transfer of the
Shares to another person. The undersigned desires to make an election to have
the Shares taxed under the provision of Code Section 83(b) at the time he
purchased the Shares.
Therefore, pursuant to Code Section 83(b) and Treasury Regulation
Section 1.83-2 promulgated thereunder, the undersigned hereby makes an election,
with respect to the Shares (described below), to report as taxable income for
calendar year 2005 the excess (if any) of the Shares' fair market value on
January 28, 2005 over purchase price thereof.
The following information is supplied in accordance with Treasury
Regulation Section 1.83-2(e):
1. The name, address and social security number of the undersigned:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
2. A description of the property with respect to which the election is being
made: _______ shares of
Prestige Brands Holdings, Inc.'s Common Stock, par value
$.01 per share.
3. The date on which the property was transferred: January 28, 2005. The
taxable year for which such election is made: calendar 2005.
4. The restrictions to which the property is subject: If the undersigned
ceases to be employed by the Company or any of its subsidiaries, the unvested
portion of the Shares will be subject to repurchase by the Company at the lower
of cost or market value.
5. The fair market value on January 28, 2005 of the property with respect to
which the election is being made, determined without regard to any lapse
restrictions: $______ per share of Common Stock.
6. The amount paid for such property: $______ per share of Common Stock.
A copy of this election has been furnished to the Secretary of the
Company pursuant to Treasury Regulations Section 1.83-2(d).
Dated:
-------------------------- ---------------------------------
[EXECUTIVE]
PURCHASER NOTICE SCHEDULE
IF TO GTCR FUND VIII, L.P., GTCR FUND VIII/B, L.P. OR GTCR CO-INVEST II, L.P.:
c/o GTCR ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO GTCR CAPITAL PARTNERS:
GTCR Capital Partners, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IF TO THE TCW/CRESCENT LENDERS AND/OR TCW/CRESCENT PURCHASERS:
TCW/Crescent Mezzanine Partners III, L.P.
TCW/Crescent Mezzanine Trust III
TCW/Crescent Mezzanine Partners III Netherlands, L.P.
▇/▇ ▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
3000 Thanksgiving Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇