UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (date of earliest event reported): July 1, 2015

 

 

 

LOGO

ENERGIZER HOLDINGS, INC.

(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)

 

 

 

Missouri   001-36837   36-4802442

(State or other jurisdiction of

incorporation or organization)

 

(Commission

File Number)

 

(I.R.S. Employee

Identification Number)

533 Maryville University Drive, St. Louis, Missouri 63141

(Address of Principal Executive Offices, Including Zip Code)

314-594-1900

(Registrant’s Telephone Number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

  ¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  ¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  ¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  ¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

Executive Compensation

On July 1, 2015, the Nominating and Executive Compensation Committee (the “ Committee ”) of the board of directors of Energizer Holdings, Inc. (the “ Company ”) adopted certain decisions relating to the compensation of the executive officers of the Company, including Alan Hoskins, President and Chief Executive Officer, Brian Hamm, Executive Vice President and Chief Financial Officer and Mark LaVigne, Executive Vice President and Chief Operating Officer. In addition, the Committee approved the grant of restricted stock equivalents to Timothy Gorman, Vice President, Controller and Principal Accounting Officer.

Base Salaries

Effective as of July 1, 2015, the Committee approved the base salaries as follows: Mr. Hoskins - $900,000, Mr. Hamm - $525,000 and Mr. LaVigne - $525,000.

Executive Bonus Plan

At its July 1, 2015 meeting, the Committee adopted the Company’s Executive Officer Bonus Plan (the “ Bonus Plan ”), including the performance criteria that may be used thereunder. The Bonus Plan authorizes the Committee to administer the Bonus Plan, to name eligible participants, and to grant awards under the terms of the Bonus Plan. The Company expects to submit the material terms of the Bonus Plan, including the performance criteria, to the shareholders for their approval at its next annual meeting.

Performance Criteria . Under the Bonus Plan, if the Committee grants awards which are subject to performance criteria, the performance objectives must be fixed not later than 90 days after the beginning of the performance period to which the objectives relate, and the Committee does not retain any discretion to adjust the objectives in any manner that could increase the amount payable under the awards. The Committee would, however, have authority to reduce the size of an award if it deemed a reduction appropriate for any reason. Before payments are made under the award, the Committee must certify in writing that the performance criteria have been achieved. The Committee approved the various performance criteria that may relate to awards under the Bonus Plan. Performance may be measured on an individual, corporate group, business unit, or consolidated basis and may be measured absolutely or relatively to the Company’s peers. In establishing the performance goals and evaluating performance thereunder, the Committee may account for certain specified unusual or extraordinary items.

Award Limitations . Under the terms of the Bonus Plan, the maximum amount which may be paid to a participant as a single award, whether that award represents performance for a single Bonus Plan year or for multiple Plan years, is Ten Million Dollars ($10,000,000). These limitations represent only an absolute maximum, and the Committee’s actual bonus targets are set forth below.

New Plan Benefits . All awards under the Bonus Plan are within the sole discretion of the Committee, and accordingly, future benefits payable under the Bonus Plan to the named executive officers and other eligible participants are not currently determinable.

The description of the Bonus Plan set forth herein is a summary only and is qualified in its entirety by the full text of the Bonus Plan (including the list of performance criteria attached thereto), a copy of which is listed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.


Fiscal Year 2015 Bonus Program

At the July 1, 2015 meeting, the Committee approved the bonus program for executive officers, including for Messrs. Hoskins, Hamm and LaVigne, for the period from July 1, 2015 through September 30, 2015 (the “ 2015 Bonus Program ”). The short duration of this program reflects the timing of completion of the Company’s separation as a standalone public company. The bonus program for the period from October 1, 2014 through June 30, 2015 was approved by the Nominating and Executive Compensation Committee of Edgewell Personal Care Company (then known as Energizer Holdings, Inc.) (“ ParentCo ”) prior to the Company’s spin-off from ParentCo (the “Spin-off”), and the performance bonuses, if any, for the Company’s executive officers for that period will be paid by the Company in November 2015 subject to the terms of the plan, which included metrics for (i) earnings per share, (ii) operating profit and (iii) restructuring savings.

The 2015 Bonus Program will offer a potential payout to executive officers, including Messrs. Hoskins, Hamm and LaVigne, expressed as a percentage of the individual’s bonus target, which is a percentage of the individual’s base salary. Due to the fact that the bonus plan only relates to the Company’s fourth fiscal quarter, bonus amounts will be limited to 25% of the individual annual bonus target for the period from July 1, 2015 through September 30, 2015. The individual bonus targets were set as follows: Mr. Hoskins – 100%, Mr. Hamm – 80%, Mr. LaVigne – 80%; Mr. Gorman – 60%.

The 2015 Bonus Program payouts for the fourth fiscal quarter are based on the achievement by the Company of (i) net sales and (ii) gross margin goals, weighted equally. Each of the performance goals will be adjusted to take into account certain specified unusual or extraordinary items as permitted under the Bonus Plan. The targets for the fourth fiscal quarter of 2015 were chosen based on fulfilling the Company’s business plan for fiscal 2015. Beginning in fiscal 2016, the Company plans to use metrics including (i) net sales, (ii) gross margin, (iii) selling, general & administrative costs as a percentage of sales, and (iv) free cash flow, in its annual bonus plan, in support of the Company’s strategy and financial objectives.

Restricted Stock Equivalent Awards

At its July 1, 2015 meeting, the Committee approved the form of the Restricted Stock Equivalent Award Agreement (the “ RSEA Agreement ”) for grants of time-based restricted stock equivalents under the Company’s Equity Incentive Plan and granted awards to certain employees of the Company, including Messrs. Hoskins, LaVigne, Hamm and Gorman, in the amounts set forth below.

 

Name    Dollar Value of
Restricted Stock Equivalents
 

Alan Hoskins

   $ 7,200,000   

Mark LaVigne

   $ 2,955,000   

Brian Hamm

   $ 2,625,000   

Timothy Gorman

   $ 500,000   

The Committee believes that these awards are important to grant to key executives leaving ParentCo to join the Company in senior roles following the Spin-off, and reflect (i) the leadership these executives have taken on to complete the successful separation, Spin-off and establish a strong foundation for the Company, (ii) retention through the uncertainty and volatility expected with any spin-off company in the initial post-spin period and (iii) the creation of a strong alignment with shareholder interests from the origin of the Company forward. The awards will be valued using the post-spin 5 day volume weighted average price of the Company’s common stock and will be granted on July 8, 2015.


The material terms of the Restricted Stock Equivalent Award Agreement are as follows:

Award . As of the date of the award, recipients will be credited with restricted Common Stock equivalents (“ Equivalents ”) which, upon vesting, will convert into shares of Company Common Stock which will be issued to the recipients.

Vesting; Payment . Vesting of the Equivalents will occur ratably on each of the first five anniversaries of the date of grant. Dividends, if any, that would have been paid on the underlying shares will be paid in cash on the date when vesting occurs.

Acceleration . All unvested Equivalents granted to a recipient will vest upon his or her death, total and permanent disability, other qualifying terminations (as defined in the RSEA Agreement) or a change of control of the Company, subject to certain conditions and limitations.

Forfeiture . Any portion of the Equivalents that are not vested will be forfeited upon:

 

    the recipient’s termination of employment (other than as specified under “Acceleration”);

 

    a determination by the Committee that the recipient engaged in competition with the Company or other conduct contrary to the best interests of the Company in violation of certain covenants in the RSEA Agreement, generally relating to confidentiality, non-solicitation, non-disparagement and non-competition.

The description of the RSEA Agreement set forth herein is a summary only and is qualified in its entirety by the full text of the RSEA Agreement, a copy of which is listed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated by reference herein.

Change of Control Employment Agreements

The Company adopted the form of Change of Control Employment Agreement which the Company has entered into with certain executive officers, including Messrs. Hoskins, Hamm, LaVigne and Gorman (the “ Change of Control Agreement ”). The agreements replace previous agreements with ParentCo that had been assumed by the Company in the Spin-off, and provide (i) security for key individuals who would be involved in the Company’s response to a hostile takeover or negotiation of a change of control and (ii) continuity in the management and direction of the Company’s businesses and operations during the periods before and after a change of control.

The Change of Control Agreements have terms of one, two or three years from –July 1, 2015, subject to certain automatic renewal provisions. For Messrs. Hoskins, Hamm and LaVigne, the term is three years. For Mr. Gorman, the term is one year. The Change of Control Agreement provides that the officer will receive severance compensation in the event of certain termination events (as provided in the agreement), other than for cause, death or disability, or within specified periods following a change in control of the Company, as such terms are defined in the agreement.

Under the Change of Control Agreement, upon a change of control, each officer will receive a pro rata annual bonus for the portion of the year occurring prior to a change of control.


If the officer is terminated under the termination events defined in the Change of Control Agreement within specified periods of the change of control, the severance compensation payable under the Change of Control Agreement consists of:

 

    a payment equal to a multiple of the officer’s annual base salary and target bonus (defined as the most recent five-year actual bonus percentages multiplied by the greater of base salary at either termination or change of control), which will be three times in the case of Messrs. Hoskins, Hamm and LaVigne and one time in the case of Mr. Gorman;

 

    a pro rata portion of the officer’s target annual bonus for the year of termination; and

 

    a lump-sum payment intended to assist with health and welfare benefits for a period of time post-termination

Following termination of employment, each officer is bound by a one-year covenant not to compete, a one-year non-solicitation covenant, and a covenant of confidentiality.

The description of the form of Change of Control Agreement set forth herein is a summary only and is qualified in its entirety by the full text of the form of Change of Control Agreement, a copy of which is listed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated by reference herein.

Executive Severance Plan

On July 1, 2015, the Company adopted an executive severance plan which provides benefits to the Company’s senior executives, including Messrs. Hoskins, Hamm and LaVigne, in the event of a “qualifying termination” as defined in the plan, which means an involuntary termination without “cause” or a voluntary termination as a result of “good reason”. The Company does not provide employment agreements and the plan was adopted to provide executives with certain benefits in the event of a qualifying termination.

Post-termination benefits for the senior executives consist of:

 

    A lump sum payment of one to two times his or her annual base salary (excluding bonus and incentive compensation) at the time of the qualifying termination, which will be two times for Messrs. Hoskins, Hamm and LaVigne;

 

    For Messrs Hoskins, Hamm and LaVigne, as well as certain other participants, a pro-rata bonus payment based on the number of days during the bonus year the participant was employed and the amount of annual bonus which the participant would have received if he or she had remained employed, based on actual Company performance; and

 

    outplacement services for up to 12 months.

The payment of benefits under the plan is conditioned upon the executive executing a general release in favor of the Company, as well as confidentiality, non-solicitation, non-disparagement and non-competition obligations. In addition, no benefits will be paid to the extent duplicative of benefits under a change in control or similar agreement with the Company.

The description of the plan set forth herein is a summary only and is qualified in its entirety by the full text of the plan, a copy of which is listed as Exhibit 10.5 to this Current Report on Form 8-K and incorporated by reference herein.


Deferred Compensation Plan

On July 1, 2015, the Company adopted the Energizer Holdings, Inc. Deferred Compensation Plan (the “ Deferred Compensation Plan ”). Under the terms of the Deferred Compensation Plan, an unfunded, non-qualified plan, directors are permitted to defer all or a portion of their retainers and fees. Deferrals may be made into (a) the Energizer common stock unit fund, which tracks the value of our common stock or (b) the prime rate option under which deferrals are credited with interest at the prime rate quoted by The Wall Street Journal. Deferrals in the Deferred Compensation Plan are paid out in a lump sum in cash within 60 days following the director’s termination of service on the Board.

Employees do not have the opportunity to defer portions of their salary and bonus compensation under the terms of the Deferred Compensation Plan or to invest in the Energizer common stock unit fund within the Deferred Compensation Plan. However, certain executives who were employed at ParentCo prior to the Company’s spin-off have had their account balances under ParentCo’s deferred compensation plan transferred to the Company’s Deferred Compensation Plan, including Mr. Hoskins ($4,204,596), Mr. Hamm ($721,118) and Mr. LaVigne ($496,543), such amounts as of June 26, 2015. These amounts are credited into a prime rate fund, which credits account balances at the prime rate quoted by The Wall Street Journal as of the first business day of the given quarter and interest equivalents are credited on a daily basis. These amounts may be paid out in a lump sum in cash six months following termination, or in five or ten-year increments commencing the year following termination of employment.

The description of the form of Deferred Compensation Plan set forth herein is a summary only and is qualified in its entirety by the full text of the Deferred Compensation Plan, a copy of which is listed as Exhibit 10.6 to this Current Report on Form 8-K and incorporated by reference herein.

Executive Savings Investment Plan

On July 1, 2015, the Company adopted an executive savings investment plan, or an excess 401(k) plan in which certain executive officers, including Messrs. Hoskins, Hamm and LaVigne will participate. Under the plan, amounts that would be contributed, either by an executive or by the Company on the executive’s behalf, to the Company’s qualified defined contribution plan (the “savings investment plan”) but for limitations imposed by the Internal Revenue Code, will be credited to the non-qualified executive savings investment plan. Under that plan, executives may elect to defer their contributions, and Company contributions in any of the measurement fund options which track the performance of the Vanguard investment funds offered under the qualified savings investment plan. Deferrals and vested Company contributions may be transferred to different investment options at the executive’s discretion. Deferrals in the executive savings investment plan, adjusted for the net investment return, are paid out in a lump sum payment, or in five or ten annual installments, following retirement or other termination of employment. In addition, obligations for benefits unpaid with respect to all account balances of Company employees who participated in the predecessor plan of ParentCo prior to the Company’s separation will be obligations assumed under this plan. Benefits accrued prior to January 1, 2005 and earnings thereon will be administered under the plan in accordance with the terms of the predecessor plan, and benefits accrued on and after January 1, 2005 and earnings thereon will be considered part of a participant’s account balance under this plan and administered accordingly. Account balances as of June 26, 2015 were: Mr. Hoskins ($664,285), Mr. Hamm ($176,974) and Mr. LaVigne ($602,802).

The description of the plan set forth herein is a summary only and is qualified in its entirety by the full text of the plan, a copy of which is listed as Exhibit 10.7 to this Current Report on Form 8-K and incorporated by reference herein.


Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit
No.

  

Description

10.1    Energizer Holdings, Inc. Executive Officer Bonus Plan and performance criteria thereunder.
10.2    Energizer Holdings, Inc. 2015 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on June 30, 2015.
10.3    Form of Restricted Stock Equivalent Agreement for awards granted in July 2015 under the Energizer Holdings, Inc. 2015 Equity Incentive Plan.
10.4    Form of Change of Control Employment Agreement with certain officers, including Messrs. Hoskins, Hamm, LaVigne and Gorman.
10.5    Energizer Holdings, Inc. Executive Severance Plan.
10.6    Energizer Holdings, Inc. Deferred Compensation Plan.
10.7    Energizer Holdings, Inc. Executive Savings Investment Plan.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.

 

ENERGIZER HOLDINGS, INC.
By:

/s/ Brian K. Hamm

Brian K. Hamm
Chief Financial Officer

Dated: July 8, 2015


EXHIBIT INDEX

 

Exhibit
No.

  

Description

10.1    Energizer Holdings, Inc. Executive Officer Bonus Plan and performance criteria thereunder.
10.2    Energizer Holdings, Inc. 2015 Equity Incentive Plan, incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on June 30, 2015.
10.3    Form of Restricted Stock Equivalent Agreement for awards granted in July 2015 under the Energizer Holdings, Inc. 2015 Equity Incentive Plan.
10.4    Form of Change of Control Employment Agreement with certain officers, including Messrs. Hoskins, Hamm, LaVigne and Gorman.
10.5    Energizer Holdings, Inc. Executive Severance Plan.
10.6    Energizer Holdings, Inc. Deferred Compensation Plan.
10.7    Energizer Holdings, Inc. Executive Savings Investment Plan.

Exhibit 10.1

ENERGIZER HOLDINGS, INC.

EXECUTIVE OFFICER BONUS PLAN

SECTION 1

ESTABLISHMENT AND PURPOSE

1.1 Purpose . Energizer Holdings , Inc. hereby establishes the Energizer Holdings , Inc. Executive Officer Bonus Plan (the “Plan”). The Plan is intended to (i) motivate and reward a greater degree of excellence and teamwork among the senior officers of the Company by providing incentive compensation award opportunities; (ii) provide attractive and competitive total cash compensation opportunities for exceptional corporate, business unit and personal performance; (iii) reinforce the communication and achievement of the mission, objectives and goals of the Company; and (iv) enhance the Company’s ability to attract, retain and motivate the highest caliber senior officers. Awards under the Plan which are based upon attainment of Performance Goals, are intended to qualify as performance-based compensation under Section 162(m) of the Code.

1.2 Effective Date . The Plan shall become effective July 1, 2015 and shall continue in effect until terminated by the Board in accordance with Section 7.4. As long as the Plan remains in effect, performance criteria shall be submitted to shareholders as necessary to enable Awards under the Plan which are based upon attainment of Performance Goals to continue to qualify as performance-based compensation under Section 162(m) of the Code.

SECTION 2

DEFINITIONS

The following words and phrases shall have the following meanings unless a different meaning is plainly required by the context:

2.1 “Award” means any cash bonus granted under the terms of the Plan. An Award may be expressed as a percentage of an Executive Officer’s Base Salary or a specific dollar amount, as determined by the Committee for each Participant for any Plan Year, or for multiple Plan Years.

2.2 “Base Salary” means as to any Plan Year, 100% of the Participant’s annualized salary rate on the last day of the Plan Year. Such Base Salary shall be before both (a) deductions for taxes or benefits, and (b) deferrals of compensation pursuant to Company-sponsored plans.

2.3 “Board” means the Company’s Board of Directors.

2.4 “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific Section of the Code shall include such Section, any valid regulation promulgated thereunder, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such Section or regulation.

2.5 “Committee” means the Nominating and Executive Compensation Committee of the Board, or any successor committee the Board may designate to administer the Plan. Each


member of the Committee shall be (i) an “outside director” within the meaning of Section 162(m) of the Code, subject to any transitional rules applicable to the definition of outside director, and (ii) an “independent” director, as defined under the Company’s Corporate Governance Principles and the listing standards of the New York Stock Exchange.

2.6 “Company” means Energizer Holdings, Inc. , a Missouri corporation.

2.7 “Determination Date” means as to any Plan Year, (a) the first day of the Plan Year, or (b) any date on or before the 90 th day of the Plan Year.

2.8 “Executive Officer” means any individual with the title of Chief Executive Officer, Chief Financial Officer, or President of the Company, and any other individual designated as an Executive Officer of the Company by the Board.

2.9 “Maximum Award” means the maximum amount which may be paid to a Participant as a single Award, whether that Award represents performance for a single Plan Year or for multiple Plan Years. The size of the Maximum Award is ten million dollars ($10,000,000).

2.10 “Participant” means as to any Plan Year (or series of Plan Years), an Executive Officer who has been selected by the Committee for participation in the Plan for that Plan Year (or series of Plan Years).

2.11 “Performance Goals” means performance goals established by the Committee with respect to any Potential Award, which goals must be based upon one or more performance-based criteria approved by the shareholders of the Company in accordance with the requirements of Section 162(m) of the Code.

2.12 “Plan Year” for the initial period of July 1, 2015 through September 30, 2015, and each succeeding fiscal year of the Company beginning October 1 through September 30.

2.13 “Potential Award” means an Award which is potentially payable to a Participant, the terms of which are established by the Committee as of the Determination Date for a Plan Year. The terms of a Potential Award can relate to that Plan Year, or a series of Plan Years, and can be exclusively performance-based, with Performance Goals, or can involve a combination of performance-based criteria and individual performance assessments, as the Committee, in its sole discretion, may determine. The Committee shall have the power to impose any restrictions on Potential Awards subject to this Plan as it may deem necessary or appropriate to ensure that an Award under this Plan, to the extent applicable, satisfies all the requirements for “performance-based compensation” within the meaning of Section 162(m) of the Code, the regulations thereunder, and any successors thereto.

 

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SECTION 3

SELECTION OF PARTICIPANTS AND DETERMINATION OF AWARDS

3.1 Selection of Participants. On or prior to the Determination Date, the Committee, in its sole discretion, shall select the Executive Officers who shall be Participants for the Plan Year. In selecting Participants, the Committee shall choose officers who are likely to have a significant impact on the performance of the Company. Participation in the Plan is in the sole discretion of the Committee, and on a Plan Year by Plan Year basis. Accordingly, an Executive Officer who is a Participant for a given Plan Year in no way is guaranteed or assured of being selected for participation in any subsequent Plan Year or Years.

3.2 Determination of Performance Goals and Potential Awards . On or prior to the Determination Date, the Committee, in its sole discretion, shall establish the terms of the Potential Award for each Participant for the Plan Year, or for multiple Plan Years, commencing on the first day of such Plan Year or multiple Plan Years, and any Performance Goals applicable to all, or a portion of, the Potential Award. To the extent that all, or a portion, of the Participant’s Potential Award is performance-based, such Potential Award shall be contingent upon the attainment of the Participant’s Performance Goals. The Committee may elect to establish alternative payment formulae for the Potential Awards based upon the attainment of alternative Performance Goals for the Plan Year (or Years), and may also elect to establish Potential Awards on a multiple year basis, contingent upon attainment of Performance Goals over multiple years. Each Participant’s Performance Goals and Potential Award shall be set forth in writing and presented to the Participant. The outcome of any Performance Goal must be substantially uncertain at the time it is established by the Committee.

3.3 Determination of Awards . After the end of each Plan Year, the Committee shall certify in writing the extent to which the Performance Goals applicable to each Participant for that Plan Year (or series of Plan Years ending with that Year) were achieved or exceeded. For this purpose, approved minutes of a meeting of the Committee shall be treated as written certification. The Committee shall also determine if the criteria for any non-performance-based Potential Awards have been attained. If applicable Performance Goals and other criteria were attained, the Committee shall determine Awards payable to each Participant in accordance with the terms of their Potential Awards. Notwithstanding any contrary provision of the Plan or the terms of the Potential Award, (a) the Committee, in its sole discretion, may eliminate or reduce the Award payable to any Participant below that which otherwise would be payable under the terms of the Potential Award, (b) if a Participant terminates employment with the Company prior to the end of a Plan Year (or series of Plan Years) for which a Potential Award has been established, the Committee may, in its sole discretion, grant an Award proportionately based on the date of termination, provided that applicable Performance Goals for that Plan Year (or Plan Years) are attained, and (c) the Committee may not adjust upwards the amount of an Award nor may it waive the attainment of Performance Goals for the applicable Plan Year or Plan Years.

 

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SECTION 4

PAYMENT OF AWARDS

4.1 Right to Receive Payment . Each Award that may become payable under the Plan shall be paid solely from the general assets of the Company. Nothing in this Plan shall be construed to create a trust or to establish or evidence any Participant’s claim of any right other than as an unsecured general creditor with respect to any payment to which he or she may be entitled. No Participant or other person shall have any rights with respect to the Plan, or to any Potential Award prior to the completion of the Plan Year (or series of Plan Years) with respect to such Award, and the Committee’s certification as to the attainment of any Performance Goals applicable thereto. Notwithstanding anything to the contrary set forth in the Plan, the Committee, in its sole discretion, may eliminate or reduce an Award payable to any Participant below that which otherwise would be payable under the terms of the Participant’s Potential Award.

4.2 Timing of Payment . Payment of each Award shall be made no sooner than the date the Committee certifies that applicable Performance Goals for a Plan Year (or Plan Years) have been attained and no later than two and one half months following the end of the last Plan Year (or series of Plan Years) to which the Award relates. Under no circumstances may payment of any Award, including the Awards described in Sections 3.3(b) and 6.2 of this Bonus Plan, be accelerated to an earlier date.

4.3 Form of Payment . Each Award shall be paid in cash (or its equivalent) in a single lump sum.

4.4 Deferral of Awards . The Committee may permit Participants the opportunity to elect to defer receipt of Awards under the terms of the Company’s Deferred Compensation Plan.

SECTION 5

ADMINISTRATION

5.1 Grant of Awards. The Committee shall determine (i) those Executive Officers eligible to be Participants, (ii) the amount, type (whether performance-based or non-performance-based) and terms of each Potential Award, and (iii) the amount of each Award, subject to the provisions of the Plan. Awards granted under the Plan shall be evidenced to the extent, and in the manner, if any, prescribed by the Committee from time to time in accordance with the terms of the Plan. In making any determinations under the Plan, including certifications as to attainment of Performance Goals, the Committee shall be entitled to rely on reports, opinions or statements of officers or employees of the Company, as well as those of counsel, public accountants and other professional or expert persons. All determinations, interpretations and other decisions under or with respect to the Plan or any Award by the Committee shall be final, conclusive and binding upon all parties, including without limitation, the Company, any Executive Officer, and any other person with rights to any Award under the Plan, and no member of the Committee shall be subject to individual liability with respect to the Plan or any Awards thereunder.

5.2 Committee Authority . The Committee shall have sole authority to administer the Plan and, in connection therewith, it shall have full power to (i) construe and interpret the Plan

 

4


consistent with the qualification of Awards under the Plan as performance-based compensation under Section 162(m) of the Code, (ii) establish rules and regulations in connection with the administration of the Plan, and (iii) perform all other acts it believes reasonable and proper, including the power to delegate responsibility to others to assist it in administering the Plan.

SECTION 6

BENEFICIARY DESIGNATION; DEATH OF AWARDEE

6.1. Designation of Beneficiary . A Participant may file with the Committee a written designation of a beneficiary or beneficiaries (subject to such limitations as to the classes and number of beneficiaries and contingent beneficiaries as the Committee may from time to time prescribe) to receive, in the event of the death of the Participant, an Award. The Committee reserves the right to review and approve beneficiary designations. A Participant may from time to time revoke or change any such designation or beneficiary and any designation of beneficiary under the Plan shall be controlling over any other disposition, testamentary or otherwise. However, if the Committee shall be in doubt as to the right of any such beneficiary to receive any Award, the Committee may determine to recognize only a right to receipt by the legal representative of the Participant, in which case the Company, the Committee and the members thereof shall not be under any further liability to anyone.

6.2 Payment of Award . Upon the death of a Participant, any Award payable to that Participant shall be determined by the Committee in its sole discretion, in light of the attainment of applicable Performance Goals, and the Company shall make payment of such Award to the Participant’s designated beneficiary or personal representative or the person or persons entitled thereto by will or in accordance with the laws of descent and distribution.

SECTION 7

OTHER GOVERNING PROVISIONS

7.1 Transferability . Except as otherwise provided herein, no Award shall be transferable other than by beneficiary designation, will or the laws of descent and distribution, and any right with respect to an Award may be exercised during the lifetime of the Participant receiving such Award only by such Participant or by his/her guardian or legal representative.

7.2. Reservation of Rights of Company . Neither the establishment of the Plan or any Potential Award, nor the granting of an Award, shall confer upon any Executive Officer any right to continue in the employ of the Company or any Affiliate or interfere in any way with the right of the Company or any Affiliate to terminate such employment at any time. The Company expressly reserves the right, which may be exercised at any time during a Plan Year, to terminate any individual’s employment without cause and without regard to the effect such termination might have upon the Participant’s receipt of an Award under the Plan.

7.3 Withholding of Taxes . The Company shall deduct from any payment, or otherwise collect from the recipient, any taxes required to be withheld by federal, state or local governments in connection with any Award.

 

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7.4 Amendment and Termination of Plan. The Board may amend or terminate the Plan at any time and for any reason; provided, however, that if and to the extent required to ensure the qualification under Section 162(m) of the Code, of Awards granted under the Plan , any such amendment shall be subject to shareholder approval.

7.5 Construction of Plan. The place of administration of the Plan shall be in the State of Missouri and the validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and rights relating to the Plan, shall be determined solely in accordance with the laws of the State of Missouri, without giving regard to the conflict of laws provisions thereof.

7.6 Unfunded Nature of Plan . The Plan shall be unfunded, and the Company shall not be required to segregate any assets which may at any time be awarded under the Plan. Any liability of the Company to any person with respect to any Award under the Plan shall be based solely upon any contractual obligations which may be created by the terms of the Plan or any agreement with respect to an Award entered into pursuant to the Plan. No such obligation of the Company shall be deemed to be secured by any pledge of, or other encumbrance on, any property of the Company.

7.7 Successors . All obligations of the Company under the Plan, with respect to any Awards granted hereunder, shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or otherwise, of all or substantially all of the business and/or assets of the Company.

7.8 Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality of invalidity will not affect the remaining parts of the Plan and the Plan will be construed and enforced as if the illegal or invalid provision had not been included.

7.9 Expenses of Plan. The expenses of administering the Plan will be borne by the Company.

 

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Under the Executive Officer Bonus Plan, performance goals established by the Committee will be based upon one or more of the following Performance Criteria:

 

    earnings per share, net earnings per share or growth in such measures;

 

    revenue, net revenue, income, net income or growth in revenue or income (all either before or after taxes);

 

    return measures (including, but not limited to, return on assets, capital, investment, equity, revenue or sales);

 

    cash flow return on investments which equals net cash flows divided by owners’ equity;

 

    controllable earnings (a division’s operating profit, excluding the amortization of goodwill and intangible assets, less a charge for the interest cost for the average working capital investment by the division);

 

    operating earnings or net operating earnings;

 

    costs or cost control;

 

    share price (including, but not limited to, growth measures);

 

    total shareholder return (stock price appreciation plus dividends);

 

    economic value added;

 

    EBITDA;

 

    operating margin or growth in operating margin;

 

    market share or growth in market share;

 

    cash flow, cash flow from operations or growth in such measures;

 

    sales revenue or volume or growth in such measures;

 

    gross margin or growth in gross margin;

 

    productivity;

 

    brand contribution;

 

    product quality;

 

    corporate value measures;

 

    goals related to acquisitions, divestitures or customer satisfaction;

 

    diversity;

 

    index comparisons;

 

    debt-to-equity or debt-to-stockholders’ equity ratio;

 

    working capital,

 

    risk mitigation;

 

    sustainability and environmental impact; or

 

    employee retention.

Performance may be measured on an individual, corporate group, business unit, or consolidated basis and may be measured absolutely or relatively to the Company’s peers. In establishing the Performance Goals, the Committee may account for:

 

    the effects of acquisitions; divestitures; extraordinary dividends; stock split-ups; stock dividends or distributions; recapitalizations; warrants or rights issuances or combinations; exchanges or reclassifications with respect to any outstanding class or series of the Company’s common stock;

 

    a corporate transaction, such as any merger of the Company with another corporation; any consolidation of the Company and another corporation into another corporation; any separation of the Company or its business units (including a spin-off or other distribution of stock or property by the Company);


    any reorganization of the Company (whether or not such reorganization comes within the definition of such term in Code Section 368); or any partial or complete liquidation by the Company; or sale of all or substantially all of the assets of the Company;

 

    the impact of changes in tax rates or currency fluctuations; unusual or non-recurring accounting impacts or changes in accounting standards or treatment;

 

    advertising or promotional spending or capital expenditures outside of annual business plans;

 

    costs associated with events such as costs related to the spin-off of the household products business, plant closings, sales of facilities or operations; and business restructurings;

 

    unusual or extraordinary non-cash items; and

 

    the exclusion of adjustments to account for exclusion of non-consolidated subsidiaries.

The Performance Criteria may be applicable to the Company and/or any of its subsidiaries or individual business units and may differ from participant to participant.

Exhibit 10.3

RESTRICTED STOCK EQUIVALENT AWARD AGREEMENT

In consideration of the mutual covenants contained herein, Energizer Holdings, Inc. (“Company”), and «Name» (“Recipient”) hereby agree as follows:

ARTICLE I

COMPANY COVENANTS

Company hereby covenants:

 

1. Award .

The Company, pursuant to its Energizer Holdings, Inc. Equity Incentive Plan (the “Plan”), grants to Recipient a Restricted Stock Equivalent Award (“Restricted Equivalents”) of «Shares» restricted common stock equivalents (“Total Restricted Equivalents”). This Award Agreement is subject to the provisions of the Plan and to the following terms and conditions, and is granted on [                    ] (“Date of Grant”).

 

2. Vesting; Payment .

Provided that such Restricted Equivalents have not been forfeited or earlier vested and settled pursuant to Section 5 below, one-fifth of the Restricted Equivalents will vest on each of the first five anniversaries of the Date of Grant subject to the provisions of this Award Agreement (each such date is hereinafter referred to as a “Vesting/Payment Date”).

Upon the Vesting/Payment Date, the Company shall transfer to the Recipient or his or her beneficiary one share of the Company’s $0.01 par value Common Stock (“Common Stock”) for each Restricted Equivalent that so vests. Such shares of Common Stock shall be issued to the Recipient or his or her beneficiary on, or as soon as practicable after the Vesting/Payment Date, but in no event later than the last day of the calendar year in which such Vesting/Payment Date occurs, or, if later, the 15 th day of the third month following the end of the month in which such Vesting/Payment Date occurs.

 

3. Additional Cash Payment .

On the Vesting/Payment Date or accelerated vesting date described in Section 4 below on which each Restricted Equivalent vests, the Company shall pay the Recipient or his or her beneficiary an amount equal to the amount of cash dividends, if any and less applicable withholding, that would have been paid to the Recipient between the Date of Grant and such Vesting/Payment Date had such vested share of Common Stock been issued to the recipient in lieu of the Restricted Equivalent that so vested as well as any cash dividends for which the record date has passed but the payment date has not yet occurred. Such amounts shall be paid in a single lump-sum as soon as practicable following such Vesting/Payment Date or, if applicable, the date shares are distributed pursuant to Section 4 below. No interest shall be included in the calculation of such additional cash payment.

 

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4. Acceleration .

Notwithstanding the provisions of Section 2 above, all Restricted Equivalents then outstanding will immediately vest, in the event of:

(a) the Recipient’s death;

(b) the Recipient’s Disability; or

(c) a Change of Control of the Company.

Notwithstanding the foregoing or the provisions of Section 2 above, a Pro-Rata Portion of Equivalents then outstanding will immediately vest, in the event of:

(d) the Recipient’s Qualifying Termination; or

(e) the Recipient’s voluntary termination of Employment that is not a Qualifying Termination Event (i) more than twelve (12) months after the Date of Grant, and (ii) the Recipient (a) is at least 55 years of age and (b) has ten (10) or more Years of Service as of the date of Termination of Employment (together, the “Age and Service Requirements”)

Upon vesting as described in Section 4(a) – (e), the Company shall transfer to the Recipient or his or her beneficiary one share of the Company’s Common Stock for each Restricted Equivalent that so vests. All Equivalents that do not vest upon the occurrence of an event described in Section 4(d) and (e) above shall be forfeited upon the occurrence of such Termination of Employment.

For accelerated vesting that occurs as a result of an event described in Section 4(a) – (d), such shares of Common Stock shall be issued to the Recipient or his or her beneficiary on, or as soon as practicable after, the date of the Recipient’s death, determination of Disability, or the date of the Change of Control, but in no event later than the last day of the calendar year in which the accelerated vesting date occurs, or, if later, the 15 th day of the third month following the end of the month in which such accelerated payment date occurs.

For accelerated vesting that occurs as a result of an event described in Section 4(e) above, such shares of Common Stock shall be issued to the Recipient or his or her beneficiary, on the first business day of the seventh month following the date of such Termination of Employment.

Notwithstanding the foregoing, if the Recipient could, prior to any Vesting / Payment Date during the term of this Agreement, satisfy the Age and Service Requirements, for accelerated vesting that occurs as a result of an event described in Section 4(d) above, such shares of Common Stock shall be issued to the Recipient or his or her beneficiary, on the first business day of the seventh month following the date of such Termination of Employment.

 

5. Forfeiture .

All rights in and to any and all Restricted Equivalents granted pursuant to this Award Agreement, and to any shares of Common Stock that would be issued to the Recipient in connection with the vesting of such Restricted Equivalent, which have not vested by the Vesting/Payment Date, as described in Section 2 above, or as described in Section 4 above, shall

 

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be forfeited. In addition, all rights in and to any and all Restricted Equivalents granted pursuant to this Award Agreement which have not vested in accordance with the terms hereof, and to any shares of Common Stock that would be issued to the Recipient in connection with the vesting of such Restricted Equivalent, shall be forfeited upon:

 

  (a) a Termination of Employment other than as described in Section 4(d) and (e) above; or

 

  (b) a determination by the Committee that the Recipient engaged in competition with the Company or other conduct contrary to the best interests of the Company in violation of Article II of this Agreement.

 

6. Shareholder Rights; Adjustment of Equivalents .

Recipient shall not be entitled, prior to the issuance of shares of Common Stock in connection with the vesting of a Restricted Equivalent, 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 Restricted Equivalents credited to Recipient shall be adjusted in accordance with the provisions of Section VI(F) of the Plan.

 

7. Other .

The Company reserves the right, as determined by the Nominating and Executive Compensation Committee of the Board of Directors of the Company (the “Committee”), to convert the Restricted Equivalents granted pursuant to 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. Notwithstanding the foregoing, the Company shall not so convert such Restricted Equivalents to the extent such conversion could result in the imposition of negative tax consequences for the Recipient under Code Section 409A. 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. Shares of Common Stock tendered as payment of required withholding shall be valued at the Fair Market Value of the Company’s Common Stock on the date such withholding obligation arises.

 

8. Code Section 409A .

It is intended that this Award Agreement be exempt from or comply with the requirements of Code Section 409A. The Plan will be administered and interpreted in a manner consistent with this intent, and any provision that would cause the Agreement to fail to satisfy Code Section 409A will have no force and effect until amended to comply therewith (which amendment may be retroactive to the extent permitted by Code Section 409A). Notwithstanding anything herein to the contrary, in the event that the Recipient is a “specified employee” of the Company within the meaning of Code Section 409A, any Shares of Common Stock or other amounts payable hereunder on account of the Recipient’s Termination of Employment that

 

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constitute “deferred compensation” within the meaning of Code Section 409A shall be paid on the first business day of the seventh month following such Termination of Employment, but only to the extent required to avoid adverse tax consequence to the Recipient under Code Section 409A.

 

9. Definitions .

Except as otherwise provided below, all defined terms in this Award Agreement shall have the same meaning as such defined term has in the Plan:

Cause shall mean (i) the failure of a Recipient to make a good faith effort to substantially perform his or her duties (other than any such failure due to the Recipient’s Disability) or Recipient’s insubordination with respect to a specific directive of the Recipient’s supervisor or officer to which the Recipient reports directly or indirectly (or the Board if the Recipient reports to the Board); (ii) Recipient’s dishonesty, negligence in the performance of his or her duties hereunder or engaging in willful misconduct, which in the case of any such negligence, has caused or is reasonably expected to result in direct or indirect material injury to the Company or its subsidiaries; (iii) breach by the Recipient of any material provision of any written agreement with the Company or its subsidiaries or material violation of any Company or its subsidiary policy applicable to the Recipient; or (iv) Recipient’s commission of a crime that constitutes a felony or other crime of moral turpitude or fraud. If, subsequent to Recipient’s termination of employment hereunder for other than Cause, it is determined in good faith by the Company that Recipient’s employment could have been terminated for Cause hereunder, Recipient’s employment shall, at the election of the Company, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.

Disability shall mean the Recipient is unable to perform the required duties in relation to their current occupation by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, provided that such disability results in the Recipient being considered “disabled” for purposes of Code Section 409A.

Good Reason shall mean the occurrence of any of the following circumstances:

 

  (i) a material diminution of Recipient’s base compensation or bonus opportunity;

 

  (ii) a material diminution of Recipient’s authority, duties, or responsibilities; or

 

  (iii) a change in the principal place of Recipient’s employment to a location more than fifty (50) miles distant from the Recipient’s then current principal place of employment.

Notwithstanding the foregoing, Good Reason will not be deemed to exist unless (i) the Recipient notifies the Company of the existence of the condition giving rise to such Good Reason within 90 days of the initial existence of such condition, (ii) the Company does not cure such condition within 30 days of such notice, and (iii) the Recipient experiences a voluntary Termination of Employment within 120 days of the initial occurrence of such condition.

 

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Pro-Rata Portion of Equivalents shall mean a the number of Restricted Equivalents subject to this Award Agreement multiplied by a fraction, the numerator of which is the number of months in the period which begins on the Date of Grant and ends on the date of the Recipient’s Termination of Employment, and the denominator of which is the number of months from the Date of Grant to the final Vesting/Payment Date. In no event will the Pro-Rata Portion of Equivalents include any Restricted Equivalents that have vested upon a Vesting/Payment Date that occurred prior to the Recipient’s Termination of Employment, and any such awards that have so vested upon a prior Vesting/Payment Date shall be subtracted from the Restricted Equivalents that would, absent the occurrence of prior such Vesting/Payment Date, have been included in the Pro-Rata Portion of Equivalents.

Qualifying Termination Event shall mean an involuntary Termination of Employment without Cause or voluntary Termination of Employment by Recipient for Good Reason.

Termination of Employment shall mean a “separation from service” with the Company and its affiliates within the meaning of Code Section 409A.

Years of Service shall mean the number of years of service the Recipient is credited with for vesting purposes under any U.S. qualified plan maintained by the Company, regardless of whether the Recipient is a participant in such plan.

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 of 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.

 

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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 two (2) 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 (a) 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 (b) 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.

 

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6. Equitable Relief .

 

  (a) 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.

 

  (b) 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.

 

  (c) I irrevocably and unconditionally consent to the service of any process, pleadings notices or other papers in a manner permitted by law.

 

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. On April 30, 2014, the Company announced that it intends to pursue a plan to separate the Company’s Household Products and Personal Care divisions into two independent, publically traded companies (the “ Separation ”). For purposes of this Article II, the term Company shall be deemed to include Energizer Holdings, Inc., its affiliates, and either of the two independent, publicly traded companies that result from the Separation for whom I provide services following the Separation.

 

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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; provided that, no consent by the Recipient is required to the extent the Company desires to accelerate payment under this Award Agreement in accordance with the provisions of Treasury Regulation Section 1.409A-3(j)(4). 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 nine (9) pages and knowingly and voluntarily accepts all of its terms and conditions.

 

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6. Effective Date .

This Award Agreement shall be deemed to be effective as of the date executed below by the Company.

IN WITNESS WHEREOF, the Company duly executed this Award Agreement as of             , 2015 and Recipient duly executed it as of             , 2015.

 

ACKNOWLEDGED AND ACCEPTED: ENERGIZER HOLDINGS, INC.

 

By:

 

Recipient Alan Hoskins
President & Chief Executive Officer

 

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Exhibit 10.4

CHANGE OF CONTROL

EMPLOYMENT AGREEMENT

This Change of Control Employment Agreement (the “Agreement”) by and between Energizer Holdings, Inc. (the “Company”) 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/her 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/her continued service to the Company, the Company agrees that Executive shall receive the benefits set forth in this 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 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(c).

 

  (d) After-Tax Amount . The meaning of the term is set forth in Subsection IV(f)(i).

 

  (e) Beneficiaries . The meaning of this term is set forth in Subsection VI(b).


  (f) Board . The meaning of this term is set forth in the second WHEREAS clause of this Agreement.

 

  (g) Business Combination . The meaning of this term is set forth in Subsection I(i)(iii).

 

  (h) Cause . For purposes of this Agreement, “Cause” shall mean Executive’s willful breach or failure to perform his/her employment duties. For purposes of this Subsection I(h), 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,

 

  (i) Change of Control . For purposes of this 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:

 

  (i) 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 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;

 

  (ii) 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) 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;

 

  (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company and such liquidation or dissolution is commenced;

 

  (v) a Section 409A Change of Control occurs; or

 

  (vi) any other event that a simple majority of the Board, in its sole discretion, shall determine constitutes a Change of Control.

 

  (j) Code . For purposes of this Agreement, “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

  (k) Company . The meaning of this term is set forth in the first paragraph of this Agreement and in Subsection VI(a).

 

  (l)

Controlled Group . For purposes of this Agreement, “Controlled Group” shall mean a group including 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 sections 414(b) and 414(c) of the Code, provided that the language “at least 50 percent” shall be used instead of “at least 80 percent” each place it

 

3


  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.

 

  (m) Disability . For purposes of this 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 Agreement.

 

  (n) Employer . For purposes of this Agreement, “Employer” shall mean the Company or the Subsidiary, as the case may be, with which Executive has an employment relationship.

 

  (o) Exchange Act . This term shall have the meaning set forth in Subsection I(i).

 

  (p) Executive . This term shall have the meaning set forth in the first paragraph of this Agreement.

 

  (q) Excise Tax . This term shall have the meaning set forth in Subsection IV(f)(i).

 

  (r) Good Reason . For purposes of this Agreement, “Good Reason” shall mean the occurrence, without Executive’s prior express written consent, of any of the following circumstances:

 

  (i) 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;

 

  (ii) (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;

 

4


  (iii) 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;

 

  (iv) 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;

 

  (v) (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;

 

  (vi) 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 Agreement, as contemplated in Subsection VI(a); or

 

  (vii) 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(c) or, if applicable, Subsection I(h). For purposes of this Agreement, no such purported Termination of Employment shall be effective except as constituting Good Reason.

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 Agreement.

 

  (s) Notice of Termination . The meaning of this term is set forth in Subsection III(c).

 

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  (t) Payments . The meaning of this term is set forth in Subsection IV(f)(i).

 

  (u) Resulting Corporation . The meaning of this term is set forth in Subsection f(i)(iii).

 

  (v) Retirement . For purposes of this 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.

 

  (w) Section 409A Change of Control . For purposes of this Agreement, “Section 409A Change of Control” shall mean:

 

  (i) The acquisition by one person, or more than one person acting as a group, of ownership of 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;

 

  (ii) The acquisition by one person, or more than one person acting as a group, of ownership of stock of the Company, that together with stock of the Company acquired during the twelve-month period ending on the date of the most recent acquisition by such person or group, constitutes 30% or more of the 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 30% or more 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;

 

  (iii) 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; or

 

  (iv) One person, or more than one person acting as a group, acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition by such person or group) assets from the Company that have a total gross fair market value (determined without regard to any liabilities associated with such assets) equal to or more than 40% of the total gross fair market value of all of the assets of the Company immediately before such acquisition or acquisitions.

 

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  (v) 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.

 

  (vi) This definition of Change in 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.

 

  (x) Severance Bonus Amount . For purposes of this 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 of Employment, 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.

 

  (y) Subsidiary . For purposes of this 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.

 

  (z) Target Bonus . For purposes of this 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.

 

  (aa) Termination Notice Date . For purposes of this Agreement, “Termination Notice Date” shall mean:

 

  (i) In the case of Executive’s Termination of Employment because of Disability, thirty (30) calendar days in advance of Executive’s Termination of Employment; and

 

  (ii)

In the case of Executive’s Termination of Employment for Cause, a date not less than thirty (30) calendar days in advance of Executive’s Termination of Employment and, in the case of Executive’s Termination

 

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  of Employment for Good Reason, a date not less than thirty (30) calendar days nor more than sixty (60) calendar days in advance of Executive’s Termination of Employment.

 

  (bb) Termination of Employment . For purposes of this Agreement, “Termination of Employment” shall mean Executive’s separation from service with the Employer and all other members of the Controlled Group, as the term “separation from service” is 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 Agreement shall commence effective as of                      . This Agreement shall continue in effect through                      ; provided, however, that commencing on                      , and every                           thereafter, the term of this Agreement shall automatically be extended for an additional year unless, not later than ninety (90) calendar days prior to the date on which this Agreement otherwise automatically would be extended, the Company shall have given notice to Executive that it does not wish to extend this Agreement; provided further, however, that if a Change of Control shall have occurred during the original or any extended term of this Agreement, this Agreement shall continue in effect for a period of                      (      ) 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 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 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 within six months prior to the date on which a Section 409A Change of Control occurs, and such Termination of Employment was at the request of a third party who has taken steps to effect a Section 409A Change of Control, or otherwise was in connection with the Section 409A Change of Control, then for all purposes of this Agreement, a Section 409A Change of Control shall be deemed to have occurred prior to such Termination of Employment. Any payment that becomes due under the terms of this Agreement with respect to a Termination of Employment, including any such Termination of Employment within six months prior to a Section 409A Change of Control under this subsection (c), shall be due at the time otherwise provided herein, such that, for example, any payment that may become due under Section IV(c) on the six month anniversary of a Termination of Employment shall be due on such six month anniversary if any

 

8


  such amount becomes payable in connection with a Termination of Employment within six months prior to a Section 409A Change of Control under this subsection (c).

 

  (d) Expiration of Agreement . No termination or expiration of this 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              (      ) 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 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 on the Termination Notice Date by written Notice of Termination to the other party hereto in accordance with Section VIII.

 

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  For purposes of this Agreement, a “Notice of Termination” shall mean a written notice that indicates the specific provision(s) of this 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 of Employment 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, at the time such payments are due under such plan(s), program(s) or agreement(s), and the Company shall have no further obligations to Executive under this 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, amounts will be treated as paid upon Termination of Employment if paid on 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 such notice is given in good faith and the party giving such notice pursues the resolution of such dispute with reasonable diligence. In the event such dispute involves nonpayment of benefits under this Agreement, Executive must take further enforcement efforts within the period specified in Regulation §1 .409A-3(g) in order to demonstrate reasonable diligence (generally within 180 days of the latest date on which payment could have been timely made absent such dispute). 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, provided that any amounts subject to Section 409A shall not commence to be paid until the sixth month anniversary of Executive’s Termination of Employment. Amounts paid under this Subsection III(c) are in addition to and not in lieu of all other amounts due to Executive under this Agreement and shall not be offset against or reduce any other amounts due to Executive under this Agreement.

 

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IV. Compensation Upon a Termination of Employment.

Upon Executive’s Termination of Employment following a Change of Control, Executive shall be entitled to the following benefits, provided that such Termination of Employment occurs during the              (      ) 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 otherwise 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 (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 such 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 Termination of Employment at the rate in effect at the time the Notice of Termination is given, no later than the second business day following Termination of Employment, 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 under such plan(s) or program(s). Without limitation, amounts payable pursuant to this Subsection (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 Termination of Employment. If Termination of Employment 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, 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(b) and the prorated bonus amount described in Subsection III(a).

 

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  (c) Additional Benefits . The Company shall pay to Executive as additional pay (“Additional Pay”), the product of             (    ) multiplied by the sum of (x) the greater of (i) Executive’s annual base salary in effect immediately prior to the Termination of Employment, 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 six month anniversary of Executive’s Termination of Employment. 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 Termination of Employment 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 III(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 required under the terms of such plans. Except as specifically set forth in section IV(d) below or as specifically required under the terms of the applicable plans, 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 his or her Termination of Employment 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.

 

  (e) Other Benefit Payment . The Company shall pay to Executive an additional amount equal to the Other Benefit Payment described below. The Other Benefit Payment shall equal the product of              (      ) multiplied by the cost of the annual Company portion of the premium under such level of coverage as the Executive and the Executive’s family had been participating immediately prior to the Executive’s Termination of Employment under any health and welfare benefit plans maintained by the Company. For the avoidance of doubt, in no event shall the annual amount of any premium that would have been paid by Executive for such benefits pursuant to the Company’s plans be included in determining the Other Benefit Payment. The Company shall pay the Other Benefit Payment to Executive in a lump sum, in cash, on the six month anniversary of Executive’s Termination of Employment.

 

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  (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 Agreement 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) (collectively, 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)(i), then the Company shall reduce the aggregate amount of the Payments payable to the Executive such that no Excise Tax shall be payable by the Executive and the Payments shall not cease to be deductible by the Company by reason of Section 280G of the Code (or any successor provision thereto). Notwithstanding the foregoing, the Company shall not reduce the aggregate amount of the Payments payable to the Executive pursuant to the foregoing sentence if the After-Tax Amount (as defined below) of the unreduced Payments is greater than the After-Tax Amount that would have been paid had the Payments been reduced pursuant to the foregoing sentence. For purposes of this Agreement “After-Tax Amount” means the portion of a specified amount that would remain after payment of all Excise Taxes (if any), income taxes, payroll and withholding taxes, and other applicable taxes paid or payable by Executive in respect of such specified amount.

 

  (ii)

If there is a determination that the Payments payable to Executive must be reduced pursuant to 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 which and how much of the Payments shall be eliminated or reduced as long as (i) the first such Payments to be reduced are not considered “deferred compensation” within the meaning of Section 409A of the Code (if any), (ii) if Payments described in (i) are exhausted and additional reductions are necessary, any cash Payments described in this Agreement are reduced next, and (iii) after such election the aggregate present value of the Payments equals the largest amount that would both (A) not cause any Excise Tax to be payable by Executive, and (B) 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. Notwithstanding the foregoing, if no election is made by Executive within the ten-day period, the Company may elect which and how much of the Payments shall be eliminated or reduced as long (i) the

 

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  first such payments to be reduced are not considered “deferred compensation” within the meaning of Section 409A of the Code (if any), (ii) if Payments described in (i) are exhausted and additional reductions are necessary, any cash Payments described in this Agreement are reduced next, and (iii) after such election the aggregate present value of the Payments equals the largest amount that would both (A) not cause any Excise Tax to be payable by Executive, and (B) 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 paragraph, present value shall be determined in accordance with Code Section 280G(d)(4).

All determinations required to be made under this Subsection IV(f), including whether the aggregate amount of Payments shall be reduced, and the assumptions to be utilized in arriving at such determinations, unless otherwise set forth in this Agreement, shall be made by a nationally recognized certified public accounting firm selected by the Company and reasonably acceptable to Executive (the “Accounting Firm”). 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. 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.

 

  (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 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 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. Such reimbursements shall be made no later than the last day of the calendar year following the calendar year in which the expenses were incurred.

 

  (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 his/her Termination of Employment or otherwise, except as specifically provided in this Section IV. The Company’s obligation to make payments to Executive provided for in this 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.

 

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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 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 or assignee (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 Agreement in the same manner and to the same extent that the Company is required to perform it. Accordingly, this Agreement shall be binding upon such successor or assignee, and the term “Company” shall include 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. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle Executive to pursue appropriate remedies for such breach.

 

  (b) Enforceable by Beneficiaries . This 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 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 Agreement, nothing in this 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.

 

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VII. Non-Competition; Non-Solicitation; Confidential Information.

 

  (a) In consideration of the benefits provided under this Agreement upon Executive’s Termination of Employment, Executive agrees that for a period of one year 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 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, and related battery and lighting products. For purposes of this 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 worldwide 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 one year 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 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 Agreement.

 

16


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:

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 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 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 Agreement. The validity, interpretation, construction and performance of this 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 Agreement.

 

X. Validity.

The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

 

17


XI. Arbitration.

Any dispute that may arise directly or indirectly in connection with this 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 Termination of Employment during the pendency of any applicable dispute or controversy. If this Article XI is in effect, any claim with respect to this 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 Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. The parties to this Agreement agree that this Agreement shall supersede any and all prior Change in Control Employment Agreements between the Executive and the Company or its predecessors or successors in interest, including any such agreements entered into with Edgewell Personal Care Company, formerly known as Energizer Holdings, Inc., or its affiliates

 

XIII. Key Employee Six Month Deferral.

Notwithstanding anything to the contrary in this Agreement, if Executive qualifies as a “specified employee” as defined in Code Section 409A, a payment of nonqualified deferred compensation paid on account of a Termination of Employment may not be made until at least six months after such Termination of Employment. Any such payment otherwise due in such six month period shall be suspended and become payable at the end of such six month period.

 

18


XIV. 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) (II) because of failure to satisfy the requirements of Code Section 409A and the regulations and guidance issued thereunder.

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

IN WITNESS WHEREOF , the Company and Executive have executed this Agreement effective as of the      day of              ,          .

 

EXECUTIVE

 

Name:

 

ENERGIZER HOLDINGS, INC.
By:

 

Name:

 

Title:

 

 

ATTEST:

 

 

19

Exhibit 10.5

ENERGIZER HOLDINGS, INC.

EXECUTIVE SEVERANCE PLAN

Effective July 1, 2015


ARTICLE I

PURPOSE, INTENT AND TERM OF PLAN

Section 1.01 Purpose and Intent of the Plan . The purpose of the Plan is to make available to Eligible Employees certain compensation and benefits in the event that such employee’s employment with the Company or a Subsidiary is terminated as a result of a Qualifying Termination. The Plan is not intended to be an “employee benefit plan” within the meaning of Section 3(3) of ERISA.

Section 1.02 Term of the Plan . The Plan shall be effective as of the Effective Date and shall continue until terminated pursuant to the provisions set forth herein.

ARTICLE II

DEFINITIONS

Section 2.01 “Base Salary” shall mean the Participant’s annual base salary, excluding bonus and incentive compensation, in effect as of the date of the Participant’s Qualifying Termination.

Section 2.02 “Board” shall mean the Board of Directors of the Company.

Section 2.03 “Cause” shall mean (i) the failure of an Eligible Employee to make a good faith effort to substantially perform his or her duties (other than any such failure due to the Eligible Employee’s disability) or Eligible Employee’s insubordination with respect to a specific directive of the Eligible Employee’s supervisor or officer to which the Eligible Employee reports directly or indirectly (or the Board if the Eligible Employee reports to the Board); (ii) Eligible Employee’s dishonesty, negligence in the performance of his or her duties hereunder or engaging in willful misconduct, which in the case of any such negligence, has caused or is reasonably expected to result in direct or indirect material injury to the Company or its Subsidiaries; (iii) breach by Eligible Employee of any material provision of any written agreement with the Company or its Subsidiaries or material violation of any Company or its Subsidiary policy applicable to Eligible Employee; or (iv) Eligible Employee’s commission of a crime that constitutes a felony or other crime of moral turpitude or fraud. If, subsequent to Eligible Employee’s termination of employment hereunder for other than Cause, it is determined in good faith by the Company that Eligible Employee’s employment could have been terminated for Cause hereunder, Eligible Employee’s employment shall, at the election of the Company, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.

Section 2.04 “Code” shall mean the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder.

Section 2.05 “Committee” shall mean the Nominating & Executive Compensation Committee of the Board or such other committee appointed by the Board to assist the Company in making determinations required under the Plan in accordance with its terms. The Committee may delegate its authority under the Plan to an individual or another committee.


Section 2.06 “Company” shall mean Energizer Holdings, Inc.

Section 2.07 “Effective Date” shall mean July 1, 2015.

Section 2.08 “Eligible Employee” shall mean any employee of the Company who is listed by name or by title in Appendix I or Appendix II herein, provided that the Plan Administrator may add Eligible Employees to such Appendices from time to time.

Section 2.09 “Employer” shall mean the Company or, if applicable, the Subsidiary that employs the Eligible Employee.

Section 2.10 “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

Section 2.11 “Good Reason” shall mean the occurrence of any of the following circumstances:

 

  (i) a material diminution of an Eligible Employee’s base compensation or bonus opportunity;

 

  (ii) a material diminution of the Eligible Employee’s authority, duties, or responsibilities; or

 

  (iii) a change in the principal place of Eligible Employee’s employment to a location more than fifty (50) miles distant from the Eligible Employee’s then current principal place of employment.

Notwithstanding the foregoing, Good Reason will not be deemed to exist unless (i) the Eligible Employee notifies the Company of the existence of the condition giving rise to such Good Reason within 90 days of the initial existence of such condition, (ii) the Company does not cure such condition within 30 days of such notice, and (iii) the Eligible Employee experiences a voluntary Separation from Service within 120 days of the initial occurrence of such condition.

Section 2.12 “Participant” shall mean any Eligible Employee who meets the requirements of Article III and thereby becomes eligible for Severance Benefits.

Section 2.13 “Plan” means this Energizer Holdings, Inc. Executive Severance Plan as set forth herein, and as the same may from time to time be amended.

Section 2.14 “Plan Administrator” shall mean the individual(s) appointed by the Committee to administer the terms of the Plan as set forth herein and if no individual is appointed by the Committee to serve as the Plan Administrator, the Plan Administrator shall be the Chief Human Resources Officer of the Company. Notwithstanding the preceding sentence, in the event the Plan Administrator is entitled to Severance Benefits under the Plan, the Committee or its delegate (who shall not be the Plan Administrator) shall act as the Plan Administrator for purposes of administering the terms of the Plan with respect to the Plan Administrator. The Plan Administrator may delegate all or any portion of its authority under the Plan to any other person(s).


Section 2.15 “Pro-Rata Bonus” shall mean a pro-rated annual bonus for the annual bonus year in which an Eligible Employee’s Qualifying Termination occurs. Such pro-rated annual bonus shall be calculated by multiplying (i) the amount to which the Eligible Employee would have been entitled as an annual bonus had he or she remained employed with the Company or Employer through the end of the bonus year in which such Qualifying Termination occurs (ii) by a fraction, the numerator is the number of days in such bonus year during which the Eligible Employee was employed by the Company or Employer and the denominator of which is the number of days in such bonus year. Such pro-rata annual bonus shall be determined based on actual Company performance during such bonus year, and no amount shall be due to the extent that the Eligible Employee would not have been entitled to an annual bonus had the Eligible Employee remained employed for the duration of the annual bonus year to which such Pro-Rata Bonus relates.

Section 2.16 “Qualifying Termination” shall mean a Separation from Service of an Eligible Employee either as a result of (i) an involuntary termination of employment of the Eligible Employee without Cause or (ii) a voluntary termination of employment by the Eligible Employee as a result of Good Reason.

Section 2.17 “Release” shall mean a written agreement, in substance and form suitable to the Company, by which a Participant agrees to waive and release the Company and, if applicable, the Employer from all legal claims the Participant may have against the Company and, if applicable, the Employer in exchange for Severance Benefits. The Release shall include the Participant’s written agreement to confidentiality, non-solicitation, non-disparagement and non-competition provisions. Releases are not required to be identical amongst Participants.

Section 2.18 “Separation from Service” shall mean “separation from service” from the Employer, within the meaning of Code Section 409A(a)(2)(A)(i) and the applicable regulations and rulings promulgated thereunder.

Section 2.19 “Severance Benefits” shall mean the benefits that a Participant is eligible to receive pursuant to Article IV of the Plan.

Section 2.20 “Subsidiary” shall mean any service recipient or employer that is within a controlled group of corporations of the Company as defined in Code Sections 1563(a)(1), (2) and (3) where the phrase “at least 50%” is substituted in each place “at least 80%” appears and any service recipient or employer within trades or businesses under common control as defined in Code Section 414(c) and Treas. Reg. Section 1.414(c)-2 where the phrase “at least 50%” is substituted in each place “at least 80%” appears, provided, however, that when the relevant determination is to be based upon legitimate business criteria (as described in Treas. Reg. Sections 1.409A-1(b)(5)(iii)(E) and 1.409A-1(h)(3)), the phrase “at least 20%” shall be substituted in each place “at least 80%” appears as described above with respect to both a controlled group of corporations and trades or business under common control.


ARTICLE III

PARTICIPATION AND ELIGIBILITY FOR BENEFITS

Section 3.01 Participation . Each Eligible Employee in the Plan who experiences a Qualifying Termination and who satisfies all of the conditions of Section 3.02 shall be eligible to receive Severance Benefits.

Section 3.02 Release . Eligibility for any Severance Benefits is expressly conditioned upon the Eligible Employee’s execution of the Release within the timeframe set forth in the Release, but no later than sixty (60) days following such employee’s Separation from Service, including the Eligible Employee’s written acceptance of, and written agreement to comply with, the confidentiality, non-solicitation, non-disparagement and non-competition provisions set forth in the Release. To the extent permitted in Section 4.03, eligibility for any Severance Benefits also is expressly conditioned upon the Eligible Employee’s written agreement that authorizes the deduction of amounts owed to the Employer prior to the payment of any Severance Benefits (or in accordance with any other schedule as the Plan Administrator may, in its sole discretion, determine to be appropriate). If the Plan Administrator notifies a Participant that repayment of all or any portion of the Severance Benefits received under the Plan is required, such amounts shall be repaid within thirty (30) calendar days after the date the written notice is sent. Any remedy under this Section 3.02 shall be in addition to, and not in place of, any other remedy, including injunctive relief, that the Company or Employer may have.

Section 3.03 Change in Control Agreement . Notwithstanding any provision to the contrary, no benefits shall be paid to an Eligible Employee pursuant to the terms of this Plan upon the event of a Qualifying Termination to the extent that benefits would otherwise be paid to such Eligible Employee pursuant to the terms of a Change in Control Employment Agreement or similar agreement between such Eligible Employee and the Company or Employer.

ARTICLE IV

DETERMINATION OF SEVERANCE BENEFITS

Section 4.01 Amount of Severance Benefits Upon Qualifying Termination . An Eligible Employee who experiences a Qualifying Termination shall, subject to the terms of this Plan, be entitled to the following benefits:

 

  (a) Lump-Sum Severance . A lump-sum severance benefit in the amount set forth in Appendix I or II, as applicable, which such amount shall be determined in accordance with such Eligible Employee’s title upon the occurrence of the Qualifying Termination.

 

  (b) Outplacement Services . Outplacement services at the outplacement agency that the Company regularly uses for such purpose; provided, however , that the period of outplacement shall not exceed twelve (12) months after the Participant’s date of Qualifying Termination.


Section 4.02 Pro-Rata Bonus . An Eligible Employee who experiences a Qualifying Termination shall, subject to the terms of this Plan, be entitled to a Pro-Rata Bonus, but only if so provided in Appendix I or Appendix II.

Section 4.03 Timing and Release .

 

  (a) Lump-Sum Severance . All amounts described in Section 4.01(a) above shall be paid as soon as administratively practicable following the later of (i) the date of an Eligible Employee’s Qualifying Termination, and (ii) the date such Eligible Employee’s Release becomes effective and irrevocable. Notwithstanding the foregoing, in no event will any amount described in Section 4.01(a) above be paid later than two and one-half months following the date of an Eligible Employee’s Qualifying Termination. Notwithstanding the foregoing or anything herein to the contrary, any amounts described in Section 4.01(a) above that become payable with respect to an Eligible Employee who has a Change in Control Employment Agreement with the Company shall be paid in a cash lump sum on the six month anniversary of the Eligible Employee’s Qualifying Termination, to the extent required to avoid the adverse tax consequences under Code Section 409A.

 

  (b) Pro-Rata Bonus . If an Eligible Employee is entitled to a Pro-Rata Bonus pursuant to Section 4.02 above or Appendix I or Appendix II, such Pro-Rata Bonus shall be paid, if at all, based on actual Company performance during the annual bonus year to which such Pro-Rata Bonus relates. Such Pro-Rata Bonus, if any, shall be paid upon the later of (i) the date annual bonuses for the annual bonus year to which such Pro-Rata Bonus relates are paid to other executive employees of the Company, or (ii) the date the Eligible Employee’s Release becomes effective and irrevocable. Notwithstanding the foregoing, in no event will any Pro-Rata Bonus be paid later than two and one-half months following the end of the bonus year to which such Pro-Rata Bonus relates.

 

  (c) Outplacement . Outplacement benefits shall begin upon the date that the Eligible Employee’s Release becomes effective and irrevocable.

Section 4.03 Reduction of Severance Benefits . The Plan Administrator reserves the right to make deductions in accordance with applicable law, and to the extent any such deduction would not result in adverse tax consequences under Code Section 409A, for any monies owed to the Employer by the Eligible Employee or for the value of any Employer property that the Eligible Employee improperly retains and fails to return to the Employer.

ARTICLE V

PLAN ADMINISTRATOR

Section 5.01 Authority and Duties . It shall be the duty of the Plan Administrator, on the basis of information supplied to it by the Employer, to administer the Plan. The Plan Administrator shall have the full and absolute power, authority and discretion to construe, interpret and administer the Plan, to make factual determinations, to correct deficiencies therein and to supply omissions. All decisions, actions and interpretations of the Plan Administrator shall be final,


binding and conclusive upon all parties and may not be overturned unless found by a court to be arbitrary and capricious. The Plan Administrator may adopt such rules and regulations and may make such decisions as it deems necessary or desirable for the proper administration of the Plan.

Section 5.02 Records, Reporting and Disclosure . The Plan Administrator or its delegate shall keep a copy of all records relating to the payment of Severance Benefits to Participants and former Participants and all other records necessary for the proper operation of the Plan. All Plan records shall be made available to the Committee, the Company, and to each Participant for examination during business hours, except that a Participant shall be entitled to examine only such records as pertain exclusively to the examining Participant and to the Plan.

ARTICLE VI

AMENDMENT, TERMINATION AND DURATION

Section 6.01 Amendment, Suspension and Termination . Except as otherwise provided in this Section 6.01, the Board, by action of the Committee, shall have the right, at any time and from time to time, to amend, suspend or terminate the Plan in whole or in part, for any reason or without reason, and without either the consent of or the prior notification to any Participant, by a formal written action. No such amendment shall give the Company the right to recover any amount paid to a Participant prior to the date of such amendment or to cause the cessation of Severance Benefits already approved for a Participant who has executed the Release (and has not revoked his or her agreement to the Release). Any amendment or termination of the Plan must comply with all applicable legal requirements including, without limitation, compliance with Code Section 409A and the regulations and rulings promulgated thereunder, securities, tax, or other laws, rules, regulations or regulatory interpretation thereof, applicable to the Plan.

Section 6.02 Duration . The Plan shall continue in full force and effect until its amendment or termination.

ARTICLE VII

DUTIES OF THE COMPANY AND THE COMMITTEE

Section 7.01 Records . The Company or Employer, as applicable, shall supply to the Committee all records and information necessary to the performance of the Committee’s duties.

Section 7.02 Payment . The provision of Severance Benefits to Participants shall be made from the Company’s general assets, in accordance with the terms of the Plan.

Section 7.03 Discretion . Any decisions, actions or interpretations to be made under the Plan by the Board, the Committee or the Plan Administrator, acting on behalf of either, shall be made in each of their respective sole discretion, not in any fiduciary capacity and need not be uniformly applied to similarly situated individuals and such decisions, actions or interpretations shall be final, binding and conclusive upon all parties. As a condition of participating in the Plan, the Eligible Employee acknowledges that all decisions and determinations of the Board, the Committee and the Plan Administrator shall be final and binding on the Eligible Employee, the Eligible Employee’s beneficiaries and any other person having or claiming an interest under the Plan on behalf of an Eligible Employee.


ARTICLE X

MISCELLANEOUS

Section 8.01 Non-Alienation of Benefits . None of the payments, benefits or rights of any Participant shall be subject to any claim of any creditor of any Participant, and, in particular, to the fullest extent permitted by law, all such payments, benefits and rights shall be free from attachment, garnishment (if permitted under applicable law), trustee’s process or any other legal or equitable process available to any creditor of such Participant. No Participant shall have the right to alienate, anticipate, commute, plead, encumber or assign any of the benefits or payments that he may expect to receive, contingently or otherwise, under this Plan.

Section 10.02 Notices . All notices and other communications required hereunder shall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier service. In the case of the Participant, mailed notices shall be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to the Plan Administrator, as follows: Chief Human Resources Officer, Energizer Holdings, Inc., 533 Maryville University Dr., St. Louis, MO 63141.

Section 10.03 Successors . Any successor to the Company shall assume the obligations under this Plan and expressly agree to perform the obligations under this Plan.

Section 10.04 Other Payments . Except as otherwise provided in this Plan, no Participant shall be entitled to any cash payments or other benefits under any of the Company’s then-current severance pay policies or plans for a termination that is covered by this Plan.

Section 10.05 No Mitigation . Except as otherwise provided in Section 4.03, a Participant shall not be required to mitigate the amount of any Severance Benefits provided for in this Plan by seeking other employment or otherwise, nor shall the amount of any Severance Benefits provided for herein be reduced by any compensation earned by other employment or otherwise.

Section 10.06 No Contract of Employment . Neither the establishment of the Plan, nor any modification thereof, nor the creation of any fund, trust or account, nor the payment of any benefits shall be construed as giving any Eligible Employee or any person whosoever, the right to be retained in the service of the Company or its Subsidiaries, and all Eligible Employees shall remain subject to discharge to the same extent as if the Plan had never been adopted.

Section 10.07 Severability of Provisions . If any provision of this Plan shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect any other provisions hereof, and this Plan shall be construed and enforced as if such provisions had not been included.


Section 10.08 Heirs, Assigns, and Personal Representatives . This Plan shall be binding upon the heirs, executors, administrators, successors and assigns of the parties, including each Participant, present and future.

Section 10.09 Headings, Captions and Titles . The titles of the Articles and Sections and the headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan or considered in any respect to affect or modify its provisions, and shall not be employed in the construction of the Plan. Such words in this Plan as “herein,” “hereinafter,” “hereof” and “hereunder” refer to this instrument as a whole and not merely to the subdivision in which said words appear.

Section 10.10 Gender and Number . Where the context admits: words in any gender shall include any other gender and, except where otherwise clearly indicated by context, the singular shall include the plural, and vice-versa.

Section 10.11 Unfunded Plan . The Plan shall not be funded. No Participant shall have any right to, or interest in, any assets of the Company or its Subsidiaries that may be applied by the Company or its Subsidiaries to the payment of Severance Benefits.

Section 10.12 Payments to Incompetent Persons . Any benefit payable to or for the benefit of a minor, an incompetent person or other person incapable of receipting therefor shall be deemed paid when paid to such person’s guardian or to the party providing or reasonably appearing to provide for the care of such person, and such payment shall fully discharge the Company and its Subsidiaries, the Committee and all other parties with respect thereto.

Section 10.13 Controlling Law . This Plan shall be construed and enforced according to the laws of the State of Missouri to the extent not superseded by federal law, which shall otherwise control.

Section 10.14 Section 409A . Notwithstanding anything to the contrary in this Plan, if an Eligible Employee is a specified employee as defined in Code Section 409A, any payment hereunder on account of a separation from service may not be made until at least six months after such separation from service, to the extent required to avoid the adverse tax consequences under Code Section 409A. Any such payment otherwise due in such six month period shall be suspended and become payable at the end of such six month period.


APPENDIX I

ELIGIBLE EMPLOYEES / BENEFIT

 

Eligible Employee

 

Benefit

Chief Executive Officer of the Company   Two Times Base Salary plus Pro-Rata Bonus
Chief Operations Officer of the Company   Two Times Base Salary plus Pro-Rata Bonus
Chief Financial Officer of the Company   Two Times Base Salary plus Pro-Rata Bonus
Chief Supply Chain Officer   One Times Base Salary
General Counsel   One Times Base Salary
Chief Human Resources Officer   One Times Base Salary

Exhibit 10.6

ENERGIZER HOLDINGS, INC.

DEFERRED COMPENSATION PLAN

(Effective July 1, 2015)


TABLE OF CONTENTS

 

     PAGE  

ARTICLE I INTRODUCTION

     1   

1.1

    

Name of Plan/Purpose.

     1   

1.2

    

“Top Hat” Retirement Benefit Plan.

     2   

1.3

    

Effective Date.

     2   

1.4

    

Administration.

     2   

ARTICLE II DEFINITIONS AND CONSTRUCTION

     3   

2.1

    

Definitions.

     3   

2.2

    

Number and Gender.

     10   

2.3

    

Headings.

     10   

ARTICLE III PARTICIPATION AND ELIGIBILITY

     11   

3.1

    

Eligibility.

     11   

3.2

    

Participation.

     11   

3.3

    

Duration of Participation.

     11   

ARTICLE IV DEFERRAL AND MATCHING CONTRIBUTIONS

     12   

4.1

    

Deferrals by Participants.

     12   

4.2

    

Effective Date of Deferred Compensation Agreement.

     12   

4.3

    

Modification or Revocation of Election of Participant.

     12   

4.4

    

Matching Contributions.

     12   

4.5

    

Continuation of Elections.

     13   

4.6

    

Mandated Deferrals.

     13   

4.7

    

Deferral Periods.

     14   

ARTICLE V VESTING

     15   

5.1

    

Vesting in Base Salary Deferrals, Bonus Deferrals, and Director Fee Deferrals.

     15   

5.2

    

Vesting in Matching and Special One-Time Company Contributions.

     15   

ARTICLE VI ACCOUNTS

     16   

6.1

    

Establishment of Bookkeeping Account.

     16   

6.2

    

Subaccounts.

     16   

6.3

    

Investment of Account.

     16   

6.4

    

Hypothetical Nature of Account.

     17   

ARTICLE VII PAYMENT OF ACCOUNT

     18   

7.1

    

Timing of Distribution of Benefits; Designated Payment Date.

     18   

7.2

    

Adjustment of Account Upon a Distribution.

     18   

7.3

    

Form of Payment or Payments.

     18   

7.4

    

Death Benefits.

     19   

7.5

    

Designation of Beneficiaries.

     19   

7.6

    

Unclaimed Benefits.

     20   

7.7

    

Withdrawal.

     20   

7.8

    

Offset of Benefit By Certain Amounts

     21   

 

i


ARTICLE VIII ADMINISTRATION

  22   

ARTICLE IX AMENDMENT AND TERMINATION

  23   

ARTICLE X GENERAL PROVISIONS

  24   

10.1

Non-Alienation of Benefits.

  24   

10.2

Contractual Right to Benefits Funding.

  24   

10.3

Indemnification and Exculpation.

  24   

10.4

No Employment Agreement.

  25   

10.5

Claims and Appeals Procedures.

  25   

10.6

Disability Claims and Appeals Procedures.

  26   

10.7

Limitation of Action and Choice of Venue.

  28   

10.8

Successor to Company.

  28   

10.9

Severability.

  28   

10.10

Transfer Among Affiliates.

  28   

10.11

Entire Plan.

  28   

10.12

Payee Not Competent.

  29   

10.13

Tax Withholding.

  29   

10.14

Governing Law.

  29   

10.15

Compliance with Code Section 409A.

  29   

 

ii


ENERGIZER HOLDINGS, INC.

DEFERRED COMPENSATION PLAN

(Effective July 1, 2015)

ARTICLE I

INTRODUCTION

 

1.1 Name of Plan/Purpose .

On July 1, 2015, Edgewell Personal Care Company (f/k/a Energizer Holdings, Inc.) (“Parent”) separated its household products business from its personal care business by means of a spin-off of a newly formed subsidiary named Energizer SpinCo, Inc. (“Spinco” or “Company”), which owns the household products business, in accordance with that certain Separation and Distribution Agreement by and between the Parent and the Spinco (“Spin-Off”). In the Spin-Off, the Parent distributed pro rata to the holders of the Parent common stock 100% of the outstanding shares of the Spinco’s common stock. In connection with the Spin-Off, the Parent was renamed from “Energizer Holdings, Inc.” to “Edgewell Personal Care Company,” and Spinco was renamed from “Energizer SpinCo, Inc.” to “Energizer Holdings, Inc.”

Parent previously established the Energizer Holdings, Inc. Deferred Compensation Plan (“Prior Grandfathered Plan”). The portion of each participant’s account under the Prior Grandfathered Plan that was earned and vested as of December 31, 2004, was frozen, except for adjustments for earnings and losses, and credited to a separate subaccount (“Prior Grandfathered Account”) to be administered in accordance with the terms of the Prior Grandfathered Plan as in effect on October 3, 2004 and the federal income tax law in effect prior to the enactment of Section 409A. The portion of each participant’s account earned or vested on or after January 1, 2005 was credited to a separate subaccount (“Prior Non-Grandfathered Account”). Prior Non-Grandfathered Accounts have been administered in accordance with the 2009 Restatement of the Energizer Holdings, Inc. Deferred Compensation Plan and subsequent amendments thereto (“Prior Plan”), which is being renamed the Edgewell Personal Care Company Deferred Compensation Plan on or about the date hereof. The Prior Plan was frozen with respect to Employee participation and Employee Bonus Deferral Elections effective as of September 30, 2012.

The Company hereby adopts a new plan known as the Energizer Holdings, Inc. Deferred Compensation Plan (“Plan”) effective July 1, 2015 (“Effective Date”), subject to the completion of the Spin-Off. As of the Spin-Off, the Company shall be responsible for the payment of all liabilities and obligations for benefits unpaid with respect to all Prior Grandfathered Account balances under the Prior Grandfathered Plan of the individuals designated in Appendix I, and such balances shall be administered in accordance with the terms of the Prior Grandfathered Plan. Prior Non-Grandfathered Account balances under the Prior Plan of individuals designated in Appendix I are hereby converted into account balances under this Plan upon terms and conditions approved by the Committee, and the Company is responsible under this Plan for the payment of all liabilities and obligations for benefits unpaid with respect to all such transferred accounts. For the avoidance of doubt, Employees listed on Appendix I are the only Employees entitled to benefits under this Plan, and no additional Employees shall participate in the Plan.

 

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1.2 “Top Hat” Retirement Benefit Plan .

The Plan is intended to be a nonqualified unfunded deferred compensation plan. The Plan is maintained for Directors and for a select group of management or highly compensated employees and, therefore, it is intended that the Plan will be exempt from Parts 2, 3 and 4 of Title I of ERISA. The Plan is not intended to qualify under Code Section 401. The Plan is intended to comply with the requirements of Section 409A of the Code.

 

1.3 Effective Date .

This Plan is effective as of July 1, 2015, subject to the completion of the Spin-Off.

 

1.4 Administration .

The Plan shall be administered by the Committee described in Article VIII.

 

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ARTICLE II

DEFINITIONS AND CONSTRUCTION

 

2.1 Definitions .

For purposes of the Plan, the following words and phrases, whether or not capitalized, shall have the respective meanings set forth below, unless the context clearly requires a different meaning:

(a) “Account” means the bookkeeping account maintained on behalf of each Participant pursuant to Article VI that is credited with Base Salary Deferrals, Bonus Deferrals, Matching Contributions, and Director Fee Deferrals pursuant to Article IV, amounts allocated to the Participant’s dividend equivalents as described in Section 6.3, interest equivalents, if applicable, and equivalents of earnings, if any, distributed with respect to other investment funds whose results are reflected in measurement funds offered pursuant to the Plan. Statements of Accounts issued to Participants also will reflect the market value of investment funds selected by the Participants for their Accounts, as of the appropriate Valuation Date. The market value of a particular investment fund in a Participant’s Account will be determined as of the appropriate Valuation Date at the time of distribution or transfer to another investment fund in the Plan, notwithstanding that the market value attributed to such investment funds may vary from day to day. For purposes of the Plan, “Account” means a Participant’s Non-Grandfathered Account.

(b) “Acquiring Person” means any person or group of Affiliates or Associates who is or becomes the beneficial owner, directly or indirectly, of shares representing 20% or more of the total votes of the outstanding stock entitled to vote at a meeting of shareholders.

(c) “Affiliate” or “Associate” shall have the meanings set forth in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended.

(d) “Base Salary” means, with respect to an Employee, the annual cash compensation relating to services performed during any calendar year, whether or not actually paid in such calendar year or included on the Federal Income Tax Form W-2 for such calendar year, excluding bonuses, commissions, overtime, fringe benefits, stock options, relocation expenses, incentive payments, non-monetary awards, and other fees, automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are included in the Employee’s gross income). Base Salary shall be calculated before reduction for compensation voluntarily or mandatorily deferred or contributed by the Participant pursuant to all qualified or non-qualified plans of the Company and any Subsidiary and shall be calculated to include amounts not otherwise included in the Participant’s gross income under Code Sections 125, 132(f)(4), 402(e)(3), 402(h) or 403(b) pursuant to plans established by the Company or Subsidiary; provided however, that all such amounts will be included in compensation only to the extent that, had there been no such plan, the amount would have been payable in cash to the Employee.

(e) “Base Salary Deferral” means the amount of a Participant’s Base Salary that the Participant elects to have withheld on a pre-tax basis from his or her Base Salary and credited to his or her Account pursuant to Section 4.1. Base Salary Deferrals will not be permitted under the Plan, and this reference to Base Salary Deferrals is for historical purposes only.

 

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(f) “Beneficial Owner” shall mean a person who shall be deemed to have acquired “beneficial ownership” of, or to “beneficially own,” any securities:

(i) which such person or any of such person’s Affiliates or Associates beneficially owns, directly or indirectly;

(ii) which such person or any of such person’s Affiliates or Associates has (a) the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the exercise of currently exercisable conversion or exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the Beneficial Owner of, or to beneficially own, securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person’s Affiliates or Associates until such tendered securities are accepted for purchase or exchange; or (b) the right to vote pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the Beneficial Owner of, or to beneficially own, any security if the agreement, arrangement or understanding to vote such security (1) arises solely from a revocable proxy or consent given to such person in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations promulgated under the Exchange Act and (2) is not also then reportable on Schedule 13D under the Exchange Act (or any comparable or successor report); or

(iii) which are beneficially owned, directly or indirectly, by any other person with which such person or any of such person’s Affiliates or Associates has any agreement, arrangement or understanding (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities) for the purpose of acquiring, holding, voting or disposing of any securities of Company.

Notwithstanding anything in this definition of “Beneficial Owner” to the contrary, the phrase “then outstanding,” when used with reference to a person’s beneficial ownership of securities of Company, shall mean the number of such securities then issued and outstanding together with the number of such securities not then actually issued and outstanding which such person would be deemed to own beneficially hereunder.

(g) “Beneficiary” means the person or entity designated by the Participant to receive benefits which may be payable on or after the Participant’s death in accordance with Section 7.4.

(h) “Board” means the Board of Directors of the Company.

(i) “Bonus Compensation” means the amount awarded to a Participant for a Plan Year under any bonus plan maintained by the Company and/or a Subsidiary which the Committee permits to be deferred under the Plan.

(j) “Bonus Deferral” means the amount of a Participant’s Bonus Compensation that the Participant elects to have withheld on a pre-tax basis from his or her Bonus Compensation and credited to his or her Account pursuant to Section 4.1. Bonus Deferrals will not be permitted under the Plan, and this reference to Bonus Deferrals is for historical purposes only.

 

4


(k) “Cause” means willful breach or failure by the Participant to perform his or her employment duties.

(l) “Change of Control” means 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:

(i) 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 20% or more of the total voting power of all of the Company’s then outstanding voting securities. For purposes of this Plan, the term “person” shall not include: (A) the Company or any corporation of which 50% or more of the voting stock is owned, directly or indirectly, by the Company (individually, a “Subsidiary” and collectively “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;

(ii) 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;

(iii) 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 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 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;

(iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company; or

(v) any other event that a simple majority of the Board, in its sole discretion, shall determine constitutes a Change of Control.

 

5


(m) “Code” means the Internal Revenue Code of 1986, as amended, and all valid regulations thereunder.

(n) “Committee” means the Energizer Benefits Committee which administers the Plan in accordance with Article VIII.

(o) “Company” means Energizer Holdings, Inc. and any successor thereto.

(p) “Continuing Director” means any member of the Board, while such person is a member of such Board, who is not an Affiliate or Associate of an Acquiring Person or of any such Acquiring Person’s Affiliate or Associate and was a member of such Board prior to the time when such Acquiring Person became an Acquiring Person, and any successor of a Continuing Director, while such successor is a member of such Board, who is not an Acquiring Person or an Affiliate or Associate of an Acquiring Person or a representative or nominee of an Acquiring Person or of any Affiliate or Associate of such Acquiring Person and is recommended or elected to succeed the Continuing Director by a majority of the Continuing Directors.

(q) “Controlled Group” means all corporations or business entities that are, along with the Company, members of a controlled group of corporations or businesses, as defined in Sections 414(b) and 414(c) of the Code, except that the language “at least 50 percent” is used instead of “at least 80 percent” in applying the rules of Sections 414(b) and 414(c).

(r) “Deferral Period” means the period of time for which a Participant elects to defer receipt of his or her Base Salary Deferrals and Bonus Deferrals credited to such Participant’s Account for a Plan Year. A Participant’s election of a Deferral Period made with respect to such Base Salary Deferrals and Bonus Deferrals for a Plan Year shall apply to Matching Contributions with respect to such Bonus Deferrals for such Plan Year. A Participant who is a Director may not elect a Deferral Period with respect to Director Fee Deferrals.

(s) “Deferrals” means (i) with respect to a Participant who is an Employee, Base Salary Deferrals and/or Bonus Deferrals, and (ii) with respect to a Participant who is a Director, Director Fee Deferrals.

(t) “Deferred Compensation Agreement” means the written agreement or electronic means by which a Participant elects the amount of Deferrals for a Plan Year, the Deferral Period, the deemed investment and the form of payment for the Deferrals and Matching Contributions, allocated to such Participant’s Account for a Plan Year. A Participant’s election with respect to the deemed investment and form of payment of Salary Deferrals and Bonus Deferrals shall apply to the Matching Contributions with respect to such Bonus Deferrals for such Plan Year. A Participant who is a Director may not elect a form of payment or Deferral Period with respect to his or her Director Fee Deferrals.

(u) “Director” means any member of the Board or any member of the board of directors of a Subsidiary who is not an officer or Employee of the Company and/or a Subsidiary.

 

6


(v) “Director Fee Deferrals” means the amount of Director Fees which a Participant elects to have withheld or which the Company mandatorily withholds on a pre-tax basis from his or her Director Fees and credited to his or her Account pursuant to Section 4.1.

(w) “Director Fees” means the amount of cash paid to a Director, including but not limited to board of director fees, committee fees, annual retainer director fees and such other amounts paid to a Director, for services as a Director of the Company or a Subsidiary.

(x) “Disability” means the inability of the Participant to perform the duties of his or her own occupation because of illness or injury of unavoidable cause.

(y) “Effective Date” has the meaning ascribed thereto in the Introduction.

(z) “Employee” means any individual who is classified by the Company or a Subsidiary, and reported on the payroll records of the Company or a Subsidiary, as a common law employee of the Company or a Subsidiary, regardless of such individual’s status under common law, including whether such individual is or has been determined by a third party (including, without limitation, a government agency or board or court or arbitrator) to be an employee of the Company or any Subsidiary for any purpose, including, for purposes of any employee benefit plan of the Company or any Subsidiary (including this Plan) or for purposes of federal, state, or local tax withholding, employment tax, or employment law. No individual shall be retroactively reclassified as an Employee.

(aa) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

(bb) “Good Reason” means any of the following: assignment of duties inconsistent with the Employee’s status or diminution in status or responsibilities from that which existed prior to the Change of Control; reduction in the Employee’s annual salary; failure of the acquirer to pay any bonus award to which the Employee was otherwise entitled, or to offer the Employee incentive compensation, stock options or other benefits or perquisites which are offered to similarly situated employees of the acquiror; relocation of the Employee’s primary office to a location greater than fifty (50) miles from his or her existing office; any attempt by the acquirer to terminate the Employee’s employment in a manner other than as expressly permitted by the Change of Control agreement(s); or the failure by the acquirer to expressly assume the Company’s obligations under the Change of Control agreement(s).

(cc) “Grandfathered Account” means the vested portion of a Participant’s account as of December 31, 2004, as adjusted for earnings or losses, as determined under the Prior Grandfathered Plan.

(dd) “Market Value” means the closing price of the Stock as reported by the New York Stock Exchange on the date in question, or, if the Stock is not quoted or if the Stock is not listed on such exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934, as amended, on which the Stock is listed, or if the Stock is not listed on any such exchange, the closing bid quotation with respect to a share of Stock on the date in question on the NASDAQ Stock Market National Market System or any system then in use, or if no such quotation is available, the fair market value on the date in question of a share of Stock as determined

 

7


by a majority of the Continuing Directors in accordance with regulations under Code Section 409A; provided, however, that the date in question for purposes of crediting Bonus Deferrals of Incentive Plan bonus payments and Company Matching Contributions thereon will be November 15, that the date in question for purposes of crediting Salary Deferrals will be the date the salary would otherwise have been paid, that the date in question for purposes of crediting Director Fee Deferrals will be the date the Director Fee would otherwise have been paid, and that the date in question for purposes of crediting Company Matching Contributions on Director Fee Deferrals will be the last day of the calendar year.

(ee) “Matching Contribution” means the amount of the contributions made by the Company and/or a Subsidiary on behalf of a Participant who elects to make Bonus Deferrals to the Plan for a Plan Year, subject to the provisions of Section 4.4.

(ff) “Non-Grandfathered Account” means (i) the portion of a Participant’s account that became vested on or after January 1, 2005, as adjusted for earnings and losses, as determined under the Prior Plan, (ii) contributions for periods on or after January 1, 2005, as adjusted for earnings and losses, as determined under the Prior Plan, and (iii) contributions for periods on or after the Effective Date, as adjusted for earnings and losses, as determined under this Plan.

(gg) “Participant” means each Director who has become a Participant pursuant to Article III. In addition, Participant means any individual whose name is listed on Appendix I hereto, to the extent an Account is credited with Prior Amounts on behalf of such individual under this Plan.

(hh) “Plan” means this Energizer Holdings, Inc. Deferred Compensation Plan, as amended from time to time.

(ii) “Plan Year” means the twelve-consecutive month period commencing January 1 of each year and ending on December 31, except that the first Plan Year shall be the period beginning on July 1, 2015 and ending on December 31, 2015.

(jj) “Prior Amounts” means amounts credited to the Plan in accordance with Section 6.1.

(kk) “Prior Grandfathered Plan” has the meaning ascribed thereto in the Introduction.

(ll) “Prior Plan” has the meaning ascribed thereto in the Introduction.

(mm) “Retirement” means (1) with respect to a Participant who is an Employee, the date such Participant incurs a voluntary Termination of Employment on or after attaining age 55 and 10 years of service (as determined under the terms of the Energizer Holdings, Inc. Retirement Plan), and (ii) with respect to a Participant who is a Director, the date such Director resigns or is removed as a Director of the Company and Subsidiaries following attainment of age 70.

(nn) “Spin-Off” has the meaning ascribed thereto in the Introduction.

(oo) “Stock” means shares of the Company’s common stock, par value $.01 per share, which consists of shares of a class of common stock designated as Energizer Common Stock (“ENR Stock”) or any such other security outstanding upon the reclassification or redesignation of the Company’s ENR Stock or any other outstanding class or series of common stock of the

 

8


Company, including, without limitation, any stock split-up, stock dividend, creation of tracking stock, or other distributions of stock in respect of stock, or any reverse stock split-up, or recapitalization of the Company or any merger or consolidation of the Company with any Affiliate, or any other transaction, whether or not with or into or otherwise involving an Acquiring Person.

(pp) “Stock Unit” means a stock unit that is equivalent to one share of Stock.

(qq) “Stock Unit Fund” means the Energizer Common Stock Unit Fund.

(rr) “Subsidiary” means any domestic corporation in which the Company owns, directly or indirectly, 50% or more of the voting stock.

(ss) “Termination for Cause” means a Participant’s termination of employment with the Company and its Subsidiaries because the Participant willfully engaged in gross misconduct; provided, however, that a “Termination for Cause” shall not include a termination attributable to: (i) poor work performance, bad judgment or negligence on the part of the Participant; or (ii) an act or omission reasonably believed by the Participant in good faith to have been in or not opposed to the best interests of his or her employer and reasonably believed by the Participant to be lawful.

(tt) “Termination of Employment” means termination of employment from the Controlled Group, as determined in accordance with rules set forth in IRS regulations under Code Section 409A (generally a decrease in the performance of services to no more than 20% of the average for the preceding 36-month period); provided, however, to the extent permitted by the regulations issued under Code Section 409A, a “Termination of Employment” does not occur if a Participant is on a military leave, sick leave or other bona fide leave of absence granted by the Company or a Subsidiary. For the avoidance of doubt, no Participant shall be treated as incurring a Termination of Employment, separation from service, retirement or other similar event for purposes of determining the right to distribution, vesting, benefits or any other purpose under the Plan as a result of the Spin-Off.

(uu) “Termination of Service” means termination of service as a Director with respect to all entities in the Controlled Group, as determined in accordance with rules set forth in IRS regulations under Code Section 409A. For the avoidance of doubt, no Director shall be treated as incurring a Termination of Service, separation from service, retirement or other similar event for purposes of determining the right to distribution, vesting, benefits or any other purpose under the Plan as a result of the Spin-Off.

(vv) “Trust” means the fund, if any, established in consequence of and for the purpose of the Plan, to be held in trust by the Trustee, from which Trust benefits under the Plan may be paid.

(ww) “Trust Agreement” means the Trust under the Energizer Holdings, Inc. Deferred Compensation Plan made and entered into by the Company with the Trustee pursuant to the Plan, as said Trust Agreement may be amended from time to time.

(xx) “Trustee” means any person, persons or corporation designated by the Company from time to time to hold, invest and disburse, in accordance with the Plan and Trust Agreement, the assets of the Plan.

(yy) “Valuation Date” means each business day that the New York Stock Exchange is open for business, unless changed by the Committee, and each special valuation date designated by the Committee.

 

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2.2 Number and Gender .

Wherever appropriate herein, words used in the singular shall be considered to include the plural and words used in the plural shall be considered to include the singular. The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender.

 

2.3 Headings .

The headings of Articles and Sections herein are included solely for convenience and do not bear on the interpretation of the text. If there is any conflict between such headings and the text of the Plan, the text shall control. As used in the Plan, the terms “Article” and “Section” mean the text that accompanies the specified Article or Section of the Plan.

 

10


ARTICLE III

PARTICIPATION AND ELIGIBILITY

 

3.1 Eligibility .

(a) Employees – Anything contained herein to the contrary notwithstanding, no Employee shall be eligible to participate in the Plan on or after the Effective Date, except for those Participants listed on Appendix I but only to the extent of their Prior Amounts.

(b) Directors - A Director is eligible to participate in the Plan.

 

3.2 Participation .

A Director shall become a Participant effective as of the January 1 following the date the Committee determines his or her eligibility. Subject to the provisions of Section 3.3, a Participant shall remain eligible to continue participation in the Plan for each Plan Year following his or her initial year of participation in the Plan. The terms of the Plan shall govern the benefits, if any, payable to the Participant or his or her Beneficiary, except as otherwise provided in the Participant’s Deferred Compensation Agreement.

Notwithstanding the foregoing, an individual who first becomes a Director on the Effective Date (and previously was not a director of Parent, did not participate in the Prior Plan and otherwise was not eligible to participate in a plan which is treated with this Plan as one plan under Treasury Regulation section 1.409A-1(c)(2)) may become a Participant on or after the Effective Date if the Committee so designates such Director as eligible, provided that the Director’s Deferred Compensation Agreement and Director Fee Deferral is effective within 30 days of becoming a Director and prior to the performance of services by the Participant for the period covered by the deferral and applies through the end of the Plan Year. Any such mid-year participation or election shall be subject to the all other terms, rules and conditions herein or as the Committee may otherwise determine.

 

3.3 Duration of Participation .

(a) Employee – No Employee shall be eligible to participate in the Plan on or after the Effective Date, except for those Participants listed on Appendix I and only to the extent of their Prior Amounts.

(b) Director - A Participant who is a Director shall cease to be a Participant as of the date on which he or she incurs a Termination of Service or the last day of the Plan Year in which the Committee terminates such Participant’s participation in the Plan, whichever date is earliest.

 

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ARTICLE IV

DEFERRAL AND MATCHING CONTRIBUTIONS

 

4.1 Deferrals by Participants .

(a) Deferral Elections by Participants - Employee Bonus Deferral Elections are not permitted under the Plan. Except as provided in Section 3.2 or 4.3, before the first day of each Plan Year, a Director may file with the Committee a Deferred Compensation Agreement pursuant to which such Director elects to make Director Fee Deferrals for such Plan Year. Any such Director election shall be subject to any maximum or minimum percentages or dollar amount limitations and to any other rules prescribed by the Committee in its sole discretion prior to the commencement of such Plan Year; provided however, that the Nominating and Executive Compensation Committee of the Board shall approve the deferral elections made each year by a Director who is an executive officer as defined in the Securities Exchange Act of 1934 and regulations promulgated thereunder.

(b) Crediting of Deferral Amounts - Director Fee Deferrals will be credited to the Account of each Participant as soon as administratively feasible after such Director Fees otherwise would have been paid to the Participant in cash, provided that the Participant is a Director as of such date. A Participant who incurs a Termination of Service before his or her Director Fees would have been paid in cash will be paid his or her Director Fee Deferrals in cash.

(c) No Base Salary Deferrals - Base Salary Deferrals will not be permitted under the Plan.

 

4.2 Effective Date of Deferred Compensation Agreement .

Except as provided in Section 3.2 or 4.3, a Participant’s Deferred Compensation Agreement shall be effective as of the first day of the Plan Year to which it relates. If a Participant fails to complete a Deferred Compensation Agreement on or before the date the Participant commences participation in the Plan or the first day of any Plan Year (or otherwise as provided in Section 3.2), the Participant shall be deemed to have elected not to make Deferrals for such Plan Year (or remaining portion thereof if the Participant enters the Plan other than on the first day of a Plan Year).

 

4.3 Modification or Revocation of Election of Participant .

Except as otherwise provided in this Section 4.3, a Participant may not discontinue or change the amount of his or her Deferrals during a Plan Year and may not make, modify, or revoke a Deferral Election retroactively. A Participant may, however, cancel a deferral election because of a hardship distribution from the Energizer Holdings, Inc. Savings Investment Plan pursuant to Treas. Reg. §1.401(k)-1(d) (3).

 

4.4 Matching Contributions .

For each Plan Year, the Company and/or its Subsidiaries shall make a Matching Contribution with respect to the Bonus Deferrals of a Participant; provided however, that (i) the amount of such Matching Contributions for each Plan Year shall be an amount equal to 25% of the Participant’s Bonus Deferrals for such Plan Year; (ii) no Matching Contribution shall be made with respect to a Participant’s Bonus Deferral if such Participant incurs a Termination of Employment

 

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before the Bonus Compensation which he or she elected to defer would have been paid in cash, and (iii) such Bonus Deferrals by Employees for such Plan Year must be invested in the Stock Unit Fund as provided in Section 6.3 for a period of not less than twelve (12) months beginning on the date such Bonus Deferrals are credited to such Participant’s Account in order to be entitled to such Matching Contribution as described below. Matching Contributions with respect to Bonus Deferrals invested in the Stock Unit Fund shall be credited to the Account of a Participant as of the date such Bonus Deferrals are credited to the Participant’s Account; provided however, Matching Contributions proportionately attributable to Bonus Deferrals that are withdrawn by a Participant from the Stock Unit Fund within twelve (12) months beginning on the date such Bonus Deferrals are credited to such Participant’s Account, shall be forfeited by such Participant. Anything contained herein to the contrary notwithstanding, the Nominating and Executive Compensation Committee of the Board shall approve the Matching Contribution, if any, made with respect to a Participant who is an executive officer as defined in the Securities Exchange Act of 1934 and regulations promulgated thereunder.

The foregoing provisions are for historical purposes only. Bonus Deferrals are not permitted under the Plan, and, for the avoidance of doubt, the Company will not make Matching Contributions and the Stock Unit Fund shall not be an available hypothetical investment for a Participant who is not a Director. In addition, the Company will not make Matching Contributions with respect to a Participant’s Director Fee Deferrals.

 

4.5 Continuation of Elections .

On the Effective Date, all deferral elections in effect under the Prior Plan with respect to Participants listed on Appendix I hereto shall transfer to, be recognized as a deferral election by, and remain in effect for the year or other applicable period to which it relates under this Plan.

 

4.6 Mandated Deferrals .

Any compensation that would not be deductible under Code Section 162(m) if paid shall be mandatorily deferred under this Plan. Such mandated deferrals shall not be entitled to a Matching Contribution and, when payable as described in this Section 4.6, shall be paid in a lump sum, in cash or in kind, as the case may be. Whether compensation otherwise payable during a Plan Year would not be deductible under Section 162(m) shall be determined as reasonably anticipated by the Committee in the following order:

(a) By taking into account total annual salary. To the extent total annual salary exceeds the Code Section 162(m) deductibility limit, it and any additional non-performance-based compensation otherwise payable during the Plan Year shall be mandatorily deferred.

(b) By taking into account any non-performance-based compensation scheduled for payout pursuant to a prior year’s deferral election. To the extent such compensation, when added to amounts payable pursuant to subparagraph (a), exceeds the Code Section 162(m) deductibility limit, such excess and any additional non-performance-based compensation otherwise payable during the Plan Year shall be mandatorily deferred.

(c) By taking into account any non-performance-based compensation scheduled for vesting or payout that is not subject to a prior year’s deferral election. To the extent such

 

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compensation, when added to amounts payable pursuant to subparagraphs (a) and (b), exceeds the Code Section 162(m) deductibility limit, such excess and any additional non-performance-based compensation otherwise payable during the Plan Year shall be mandatorily deferred.

(d) By taking into account any additional non-performance-based compensation scheduled for payout. To the extent such compensation, when added to amounts payable pursuant to subparagraphs (a), (b) and (c), exceeds the Code Section 162(m) deductibility limit, such excess shall be mandatorily deferred.

Any compensation deferred pursuant to this Section 4.6 shall remain deferred until (i) the first calendar year in which the Committee reasonably anticipates that the deduction of such payment will not be barred by application of Code Section 162(m) after taking into account compensation described in subparagraphs (a) through (d) above, and (ii) the sixth month anniversary of the Participant’s Termination of Employment, as permitted under Section 409A and the regulations thereunder. Such compensation shall be paid out on a first-in first-out basis with respect to the year of its mandatory deferral and will be payable in the form, if any, specified or elected in the initial grant of such compensation to the Employee. If no form of payment was specified or elected, such mandated deferral shall be paid in a lump sum.

 

4.7 Deferral Periods .

(a) Employees - A Participant who is an Employee previously specified under the Prior Plan on the Deferred Compensation Agreement, the Deferral Period for the Deferrals for the Plan Year to which the Deferred Compensation Agreement relates. A Participant elected one of the Deferral Period options as follows: (1) a Deferral Period of at least three (3) years pursuant to which a distribution is made within sixty (60) days of the January 1 immediately following the end of the Deferral Period, or (2) a Deferral Period ending on the first day of the month following the month in which occurs the six month anniversary of the date of the Participant’s Termination of Employment.

(b) Directors - A Participant who is a Director may not elect a Deferral Period with respect to Director Fee Deferrals. Payment of such Director Fee Deferrals shall be made in accordance with the provisions of Section 7.1.

 

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ARTICLE V

VESTING

 

5.1 Vesting in Base Salary Deferrals, Bonus Deferrals, and Director Fee Deferrals .

A Participant shall always be 100% vested in the amounts allocated to his or her Account attributable to his or her Base Salary Deferrals, Bonus Deferrals and Director Fee Deferrals.

 

5.2 Vesting in Matching and Special One-Time Company Contributions .

(a) Employees - A Participant who is an Employee shall become 100% vested in the amounts allocated to his or her Account attributable to his or her Matching Contributions for a Plan Year upon the expiration of thirty-six (36) months beginning on the first day of the first full month following the date such Matching Contributions are credited to his or her Account. In the event such Participant incurs a Termination of Employment, the amounts allocated to his or her Account attributable to his or her Matching Contributions in which such Participant is vested shall be determined as of the date of such Termination of Employment unless otherwise provided in paragraph (b) of this Section 5.2. A Participant shall be 100% vested in the Special One-Time Company Contribution for the 2009 Plan Year (as defined and determined under and transferred from the Prior Plan).

(b) Notwithstanding the foregoing, a Participant who is an Employee shall become 100% vested in the amounts allocated to his or her Account attributable to his or her Matching Contributions upon the Participant’s Retirement, death, Disability, involuntary Termination of Employment (other than Termination for Cause) or upon a Change of Control if the Participant incurs a Termination of Employment within twelve (12) months following such Change of Control, and if such Termination of Employment is by the Participant for Good Reason, or such Termination of Employment is by the Company or a Subsidiary, for any reason other than Cause.

(c) Directors - a Participant who is a Director shall always be 100% vested in the amounts allocated to his or her account attributable to his or her Matching Contributions.

(d) Prior Plan . Prior service recognized for vesting purposes under the Prior Plan as of the date of the Spin-Off shall be counted as service for vesting under this Plan. Matching Contributions credited as Prior Amounts shall be subject to the foregoing vesting provisions of this Article, provided that the original date of crediting under the Prior Plan with respect to such contributions shall be deemed to be the relevant date of crediting for purposes of determining any vesting under this Plan.

 

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ARTICLE VI

ACCOUNTS

 

6.1 Establishment of Bookkeeping Account .

Separate bookkeeping Accounts shall be maintained for each Participant. For a Participant with benefits under the Prior Grandfathered Plan, the Account shall be referred to as the Grandfathered Account. For a Participant with benefits under the Plan that are not otherwise determined under the Grandfathered Account, the Account shall be referred to as the Non-Grandfathered Account. Each Non-Grandfathered Account shall be credited with the Deferrals made by the Participant pursuant to Section 4.1 and the Matching Contributions made by the Company or a Subsidiary pursuant to Section 4.4. Grandfathered and Non-Grandfathered Accounts also shall reflect the investment results described in Section 6.3. The amount credited to an account under the Prior Plan as of the Spin-Off with respect to a Participant listed on Appendix I shall be credited to such Participant’s Account as Prior Amounts under this Plan, except that the Director listed on Appendix I who will serve as a director of the Company and of the Parent immediately following the Spin-Off shall have the portion of the amount credited to an account under the Prior Plan immediately prior to the Spin-Off that such Director elected to have remain credited to the Prior Plan, remain credited to the Prior Plan. For the avoidance of doubt, any Grandfathered Account shall be administered in accordance with the terms of the Prior Grandfathered Plan notwithstanding anything herein to the contrary.

 

6.2 Subaccounts .

Within each Participant’s bookkeeping Accounts, separate subaccounts may be maintained to the extent necessary for the administration of the Plan. For example, it may be necessary to maintain separate subaccounts where the Participant has specified different Deferral Periods, methods of payment or investment directions with respect to his or her Deferrals for different Plan Years.

 

6.3 Investment of Account .

A Participant shall elect to invest the amounts credited to his or her Account in such measurement funds as are selected by the Committee in its sole discretion, including but not limited to the Stock Unit Fund. The Committee may change or eliminate such measurement funds from time to time. The investment of such funds, or change in such investments, shall be made in accordance with such rules and procedures established by the Committee. Notwithstanding the foregoing or anything herein to the contrary, a Participant who is not a Director may not elect to invest any amounts (including Prior Amounts) credited to his or her Account in the Stock Unit Fund.

A Participant’s Account shall consist of a cash subaccount and, with respect to a Participant who is a Director, a stock subaccount. Amounts allocated to the cash subaccount shall be invested in investments other than Stock Units. Amounts allocated to the stock subaccount shall be maintained as Stock Units. A Participant shall elect on his or her Deferred Compensation Agreement the portion of his or her Deferrals for a Plan Year that will be allocated to a cash subaccount and to the stock subaccount. The balance of a Participant’s Account as of any date is the aggregate of the cash subaccount and the stock subaccount as of such date. The balance of each

 

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cash subaccount shall be expressed in United States dollars. The balance of each stock subaccount shall be expressed in the numbers of shares of Stock deemed allocated to such subaccount, with fractional shares of Stock calculated to three decimal places. The number of Stock Units allocated to the stock subaccount as of any date shall be equal to the quotient of the amount allocated to the stock subaccount divided by the Market Value on such date. Upon the occurrence of any stock split-up, stock dividend, issuance of any tracking stock, combination or reclassification with respect to any outstanding series or class of Stock, or consolidation, merger or sale of all or substantially all of the assets of the Company, the number of Stock Units in each stock subaccount shall, to the extent appropriate as determined by the Committee in its sole discretion, be adjusted accordingly. To the extent dividends on any class or series of outstanding Stock are paid, dividend equivalents and fractions thereof shall be calculated with respect to balances of such Stock equivalents in the Participant’s stock subaccount, converted to additional equivalents of such Stock and credited to the Participant’s stock subaccount as of the dividend payment dates. The number of Stock equivalents to be credited as of each such date shall be determined by dividing the amount of the dividend equivalent by the Market Value of the relevant Stock on the dividend payment date. The Participant’s stock subaccount shall continue to earn such dividend equivalents until fully distributed.

Fund selections recognized under the Prior Plan immediately prior to the Spin-Off shall be recognized under this Plan until superseded or otherwise changed in accordance with this Plan or as and to the extent otherwise permitted by the Committee; provided, however, that Prior Amounts deemed invested in a measurement fund under the Prior Plan not recognized under this Plan shall be deemed invested in a fund selected by the Committee until the Participant elects a replacement fund (if and to the extent permitted by the Committee).

As of each Valuation Date, a Participant’s Account shall be valued in accordance with this Section and any rules and procedures established by the Committee.

 

6.4 Hypothetical Nature of Account .

The Account established under this Article VI shall be hypothetical in nature and shall be maintained for bookkeeping purposes only. Neither the Plan nor any of the Accounts (or subaccounts) established hereunder shall hold any actual funds or assets. The right of any person to receive one or more payments under the Plan shall be an unsecured claim against the general assets of the Company or Subsidiary for which the Participant worked when the Deferrals, Matching Contributions, and/or Special One-Time Company Contributions were made. Any liability of the Company or Subsidiary to any Participant, former Participant, or Beneficiary with respect to a right to payment shall be based solely upon contractual obligations created by the Plan. Neither the Company and/or any Subsidiary, the Board, nor any other person shall be deemed to be a trustee of any amounts to be paid under the Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship, between the Company and/or any Subsidiary and a Participant or any other person.

 

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ARTICLE VII

PAYMENT OF ACCOUNT

 

7.1 Timing of Distribution of Benefits; Designated Payment Date .

(a) Employees - With respect to a Participant who is an Employee, the amounts allocated to a Participant’s account attributable to Deferrals and vested Matching Contributions for a Plan Year shall be distributed (or begin to be distributed, in the case of annual installment payments) to such Participant on the earlier of (i) a date within sixty (60) days of the January 1 immediately following the last day of the Deferral Period for such Plan Year, or (ii) the first day of the month following the month in which occurs the six month anniversary of the Participant’s Termination of Employment.

(b) Directors - With respect to a Participant who is a Director, distribution of the Participant’s Account shall be made within sixty (60) days after the date the Participant incurs a Termination of Service, provided that the Director may not specify the calendar year of payment.

 

7.2 Adjustment of Account Upon a Distribution .

Upon a distribution pursuant to this Article VII, the distributable portion of a Participant’s Account shall be determined as of the Valuation Date immediately preceding the date of the distribution to be made and shall be credited with declared dividends, if any, and adjusted for investment results which have accrued to the date of distribution but which have not been allocated to his or her Account.

 

7.3 Form of Payment or Payments .

The amounts allocated to a Participant’s account attributable to Deferrals and vested Matching Contributions made to the Plan for a Plan Year, shall be distributed to the Participant specified as follows:

(a) Lump Sum Payment - A Participant who is an Employee may elect to have his or her benefit paid in a lump sum payment as elected in his or her Deferred Compensation Agreement at the time specified in Section 7.1(a). A Participant who is a Director shall receive payment of his or her Account in a lump sum payment at the time specified in Section 7.1(b).

(b) Annual Installment Payment - A Participant who is an Employee may elect in his or her Deferred Compensation Agreement to have his or her benefit paid in a series of annual installment payments. For purposes of Section 409A and the regulations thereunder, annual installment payments made pursuant to a Participant’s election in a Deferred Compensation Agreement shall be treated as a single payment. If a benefit is to be paid in a series of annual installment payments, the annual installment payments may be made for a period equal to five (5) or ten (10) years, as elected by the Participant in his or her Deferred Compensation Agreement. The first installment will be paid at the time specified in Section 7.1(a). Subsequent annual installment payments shall be paid on January 1 of each year. The amount of each annual installment payment shall be calculated by multiplying the total amount to be distributed to such Participant by a fraction, the numerator of which is one, and the denominator of which is the remaining number of annual installment payments to be made to the Participant.

 

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(c) Change in Election of Method of Payment - Anything contained herein to the contrary notwithstanding, a Participant shall be permitted to change the form of payment initially elected in a Deferred Compensation Agreement (or, for Directors, the form of payment initially required in accordance with Section 7.3(a)), provided that (i) such election will not take effect until 12 months after the date on which the election is made; (ii) the payment with respect to which such election is made will be deferred for an additional 5 years after the date such payment would otherwise have been made; and (iii) such election must be made at least 12 months before the date the payment would otherwise have been made. Subject to the foregoing, a Participant who is a Director may elect to change the form of payment initially required to an annual installment payment consistent with such form of payment otherwise described in Section 7.3(b) and in a form and manner and subject to such rules and conditions as required by the Committee. No Participant may change the form of payment initially elected (or required, in the case of Directors) more than once.

(d) Prior Elections . Notwithstanding anything to the contrary, Prior Amounts shall be distributed at the time determined in accordance with the Prior Plan as of the Spin-Off. Deferred compensation agreements or other distribution elections or requirements effective under such plan as of the Spin-Off with respect to Participants listed on Appendix I shall be recognized under this Plan, subject to permitted modifications described herein.

(e) Failure to Elect - If a Participant does not elect the form of payment in his or her Deferred Compensation Agreement, his or her benefit shall be paid in the form of a lump sum payment.

 

7.4 Death Benefits .

(a) Employees - Notwithstanding any other provision of this Article VII, in the event a Participant who is an Employee dies before his or her benefit commences to be paid to him or her, the total amount allocated to the Participant’s Account shall be paid in a lump sum to the Participant’s Beneficiary. In the event a Participant who is an Employee or who was an Employee and who has terminated employment, dies after his or her benefit commences to be paid to him or her, the remainder of his or her vested Account shall be paid in a lump sum to the Participant’s Beneficiary. If no Beneficiary is designated, then benefits shall be paid in a lump sum within ninety (90) days following the date of death as provided in Section 7.5, provided that the Beneficiary may not specify the calendar year of payment.

(b) Directors - In the event a Participant who is a Director dies, the amount credited to the Participant’s Account (or, the remainder of his or her Account if benefits have commenced) shall be paid to the Participant’s Beneficiary in a lump sum within ninety (90) days following the date of death, provided that the Beneficiary may not specify the calendar year of payment.

(c) Distribution pursuant to this Section 7.4 shall be made within ninety (90) days following the date of death.

 

7.5 Designation of Beneficiaries .

A Participant may designate the Beneficiary or Beneficiaries to whom his or her benefit under the Plan shall be paid if he or she dies before receiving complete payment of such benefit. A

 

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Beneficiary designation (i) must be made on a beneficiary designation form provided by the Committee, (ii) shall be effective on the date such designation form is actually received by the Committee, and (iii) shall revoke all prior designations made by the Participant. A Beneficiary designation form received by the Committee after the date of the Participant’s death shall be null and void. If a Participant has not designated a Beneficiary, if no designated Beneficiary survives the Participant or if the Beneficiary designation is legally invalid for any reason, then, the Participant’s Beneficiary shall be the Participant’s executor or administrator, or his or her heirs at law if there is no administration of such Participant’s estate. If the Committee is in doubt as to the right of any such Beneficiary to receive any benefits under the Plan, it may pay such benefits, in its sole and absolute discretion, to the legal representative of the Participant’s estate, and upon such payment neither the Committee, the Company, nor the Plan shall have further liability for such payment.

The beneficiary designation, if any, in effect under the Prior Plan immediately prior to the Spin-Off with respect to Participants listed on Appendix I shall be recognized under this Plan and shall be deemed the Participant’s valid Beneficiary designation hereunder, subject to permitted changes as described herein.

 

7.6 Unclaimed Benefits .

In the case of a benefit payable on behalf of such Participant, if the Committee is unable to locate the Participant or Beneficiary to whom such benefit is payable, such benefit may be forfeited to the Company, upon the Committee’s determination, Notwithstanding the foregoing, if subsequent to any such forfeiture the Participant or Beneficiary to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit shall be paid by the Company or restored to the Plan by the Company.

 

7.7 Withdrawal .

(a) A Participant (or, after a Participant’s death, his or her Beneficiary) may request a withdrawal of all or a portion of his or her vested Account on account of a severe financial hardship in accordance with such rules and procedures prescribed by the Committee. The Participant (or his or her Beneficiary) shall be paid the withdrawal amount as soon as practicable after the Committee approves his or her request. The payment of this withdrawal amount shall not be subject to the deduction limitation under Code Section 162(m).

(b) If the Committee determines that a Participant has incurred a severe financial hardship, the Committee may make a cash distribution to the Participant of the portion of the vested balance of his or her Account needed to satisfy the severe financial hardship (including taxes reasonably anticipated as a result of such distribution), to the extent that the severe financial hardship may not be relieved:

(i) Through reimbursement or compensation by insurance or otherwise; or

(ii) By liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship.

(c) A “severe financial hardship” is a Participant’s need for a distribution, as determined by the Committee, resulting from:

(i) A sudden and unexpected illness or accident of the Participant or of a dependent or close family member of the Participant;

 

20


(ii) Loss of the Participant’s property due to casualty;

(iii) Any other events specified as “unforeseeable emergencies” under Code Section 409A and the regulations and guidance thereunder;

(iv) Other extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant as permitted under Code Section 409A.

The Committee shall determine whether the Participant has satisfied the requirements of this Section 7.7. The Committee may decline a request for a distribution under this Section 7.7 if the Committee determines that such distribution is not in the best interests of the Company. All determinations made by the Committee pursuant to this Section 7.7 shall be binding on all parties.

 

7.8 Offset of Benefit By Certain Amounts

The Committee, in its sole and absolute discretion, may offset any benefit payable to a Participant or Beneficiary pursuant to this Article VII by any amounts the Participant or Beneficiary may owe the Company and/or any Subsidiary or any amounts the Participant or Beneficiary may owe any employee benefit plan maintained by the Company and/or Subsidiary, provided that such debt is incurred in the ordinary course of the employment or service relationship between the Participant and the Company or any Subsidiary and the entire amount of reduction in any calendar year does not exceed $5,000.

 

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ARTICLE VIII

ADMINISTRATION

The Plan shall be administered by the Committee. The Committee shall have all powers necessary or appropriate to enable it to carry out its administrative duties. Not in limitation, but in application of the foregoing, the Committee shall have the duty and power to interpret the Plan and determine all questions that may arise hereunder as to the status and rights of Employees, Directors, Participants, and Beneficiaries. The Committee shall also have the duty and power to interpret the Plan to determine all questions that may arise hereunder as to the determination of whether the individual is an Employee. The Committee may exercise the powers hereby granted in its sole and absolute discretion. The interpretation of the Plan or other action of the Committee made in good faith in its sole discretion shall be subject to review only if such an interpretation or other action is without a rational basis. Any review of a final decision or action of the Committee shall be based only on such evidence presented to or considered by the Committee at the time it made the decision that is the subject of the review. The Company and any Subsidiary whose Employees are covered by the Plan and any Employee or Director who is or may be covered by the Plan hereby consent to actions of the Committee made in its sole discretion and agree to be bound by the narrow standard of review prescribed in this Section. No member of the Committee shall be personally liable for any actions taken by the Committee unless the member’s action involves willful misconduct. The Committee may delegate its administrative responsibilities to any Employee of the Company provided such designation is in writing.

 

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ARTICLE IX

AMENDMENT AND TERMINATION

The power to amend, modify or terminate the Plan in whole or in part and at any time is reserved to the Committee and to the Board or its delegate. Notwithstanding the foregoing, (a) no amendment or modification which would reasonably be considered to be adverse to a Participant or Beneficiary may apply to or affect the terms of any deferral of compensation that was approved prior to the effective date of such amendment or modification without the consent of the Participant or Beneficiary affected thereby, and (b) the termination of the Plan shall not affect the Deferred Compensation Agreements then in effect, except that no additional amounts may be deferred by Participants to the Plan after the date of termination of the Plan.

The Committee may terminate the Plan, and distribute all vested accrued benefits, subject to the restrictions set forth in Treas. Reg. § 1.409A-3(j)(4). A termination of the Plan must comply with the provisions of Code Section 409A and the regulations and guidance promulgated thereunder, including, but not limited to, restrictions on the timing of final distributions and the adoption of future deferred compensation arrangements.

 

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ARTICLE X

GENERAL PROVISIONS

 

10.1 Non-Alienation of Benefits .

No right or benefit under the Plan shall be subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber, or change any right or benefit under this Plan shall be void. No right or benefit hereunder shall in any manner be liable for or subject to the debts, contracts, liabilities or torts of the person entitled to such benefits. If the Participant or Beneficiary becomes bankrupt, or attempts to anticipate, alienate, sell, assign, pledge, encumber, or change any right hereunder, then such right or benefit shall, in the discretion of the Committee, cease and terminate, and in such event, the Committee may hold or apply the same or any part thereof for the benefit of the Participant or Beneficiary, spouse, children, or other dependents, or any of them in such manner and in such amounts and proportions as the Committee may deem proper. Notwithstanding anything in this Section to the contrary, the Committee may comply with a qualified domestic relations order as defined in Code section 414(p); provided however, that for purposes of this Section 10.1, (i) the provisions of Code section 414(p)(9) shall be disregarded and shall have no force and effect in applying the provisions of Code section 414(p), and (ii) the provisions of Code section 414(p)(4) shall be disregarded when making a determination whether a domestic relations order is a qualified domestic relations order so that no order shall be considered to be a qualified domestic relations order if it requires an amount to be paid to an alternate payee before the earlier of (A) the date the Participant begins to receive benefits under the Plan, or (B) the date of the Participant’s death. Anything contained herein to the contrary notwithstanding, benefits payable from the Plan under this Section 10.1 to an alternate payee pursuant to a qualified domestic relations order shall be paid only in the form of a lump sum payment. The Committee may establish procedures similar to those described in Code sections 414(p)(6) and (7), in lieu of the procedures set forth in Code sections 414(p)(6) and (7), for evaluating domestic relations orders and for handling benefits while domestic relations orders are being evaluated.

 

10.2 Contractual Right to Benefits Funding .

The Plan creates and vests in each Participant a contractual right to the benefits to which he or she is entitled hereunder, enforceable by the Participant against the Company. The benefits to which a Participant is entitled under the Plan shall be paid from the general assets of the Company or from the Trust that may be established or maintained to provide such benefits.

If a Trust is established and maintained, amounts deposited with the Trustee shall be held and disposed of in accordance with the terms of the Trust Agreement and payments made under the terms of the Trust Agreement shall be in satisfaction of claims against the Company under the Plan. Nothing in the Plan or Trust Agreement shall relieve the Company of its liabilities to pay amounts under the Plan except to the extent that such liabilities are met from the use of the assets held in Trust.

 

10.3 Indemnification and Exculpation .

The members of the Committee and their agents, and the officers, directors and employees of the Company and any Subsidiary shall be indemnified and held harmless by the Company against

 

24


and from any and all loss, cost, liability, or expense that may be imposed upon or reasonably incurred by them in connection with or resulting from any claim, action, suit, or proceeding to which they may be a party or in which they may be involved by reason of any action taken or failure to act under this Plan and against and from any and all amounts paid by them in settlement (with the Company’s written approval) or paid by them in satisfaction of a judgment in any such action, suit, or proceeding. The foregoing provision shall not be applicable to any person if the loss, cost, liability, or expense is due to such person’s gross negligence or willful misconduct.

 

10.4 No Employment Agreement .

The Plan is not a contract of employment, and participation in the Plan shall not confer on any Employee the right to be retained in the employ of the Company and/or any Subsidiary.

 

10.5 Claims and Appeals Procedures .

A Participant or Beneficiary may claim any benefit to which he or she is entitled under this Plan by a written notice to the Committee. If a claim is denied, it must be denied within ninety (90) days after receipt of the claim, unless special circumstances require an extension. If an extension is necessary, the extension shall not be longer than an additional ninety (90) days. Any denial shall be in a written notice stating the following:

(a) The specific reason for the denial.

(b) Specific reference to the Plan provision on which the denial is based.

(c) Description of additional information necessary for the claimant to present his or her claim, if any, and an explanation of why such material is necessary.

(d) An explanation of the Plan’s claims review procedures, and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review.

If the Committee does not deny the claim within the time specified above, the claimant may commence action in state or federal court.

The claimant will have sixty (60) days to request a review of the denial by the Committee, which will provide a full and fair review. The request for review must be in writing delivered to the Committee. The claimant may review pertinent documents, and he or she may submit issues and comments in writing. The decision by the Committee with respect to the review must be given within sixty (60) days after receipt of the request, unless special circumstances require an extension (such as for a hearing). In no event shall the decision be delayed beyond one hundred and twenty (120) days after receipt of the request for review. The decision shall be written in a manner calculated to be understood by the claimant, shall include specific reasons and refer to specific Plan provisions as to its effect, state that the claimant is entitled to receive upon request and free of charge, reasonable access to and copies of, all documents, records and other information relevant to the claim, and state that the claimant has a right to bring a civil action under Section 502(a) of ERISA.

 

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Anything contained herein to the contrary notwithstanding, any claim filed under the Plan and any action brought in state or federal court by or on behalf of a Participant, a Beneficiary or alternate payee for the alleged wrongful denial of Plan benefits or for the alleged interference with ERISA-protected rights must be brought within one (1) year of the date of the Participant’s, the Beneficiary’s or alternate payee’s cause of action first accrues. Failure to bring any such cause of action within this one (1) year time frame shall preclude a Participant, a Beneficiary or alternate payee, or any representative of the Participant, the Beneficiary or alternate payee, from bringing the claim or cause of action. Correspondence or other communications following the mandatory appeals process described in this Section 10.5 shall have no effect on this one (1) year time frame.

 

10.6 Disability Claims and Appeals Procedures .

Notwithstanding anything to the contrary in Section 10.5 above, if a determination of Disability must be made in order to decide a claim, the claim shall be considered a Disability claim and shall be subject to the following procedures.

The Committee shall process each Disability claim and make an initial decision as to the validity of the claim within a reasonable period of time, but no later than forty-five (45) days after receipt of the claim. If the Committee determines that an extension to process the Disability claim is necessary due to matters beyond the control of the Committee, the Committee may extend the 45-day response period for up to thirty (30) days by notifying the claimant, prior to the termination of the initial 45-day period, of the circumstances requiring the extension of time and the date by which it expects to render a decision. If the Committee determines that an additional extension to process the Disability claim is necessary due to matters beyond the control of the Committee, the Committee may extend the response period for up to an additional thirty (30) days by notifying the claimant, prior to the termination of the first 30-day extension period, of the circumstances requiring the extension of time and the date by which it expects to render a decision. An extension notice shall specifically explain the standards on which entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim, and the additional information needed to resolve those issues. If the reason for the extension is the claimant’s failure to provide necessary information to decide the claim, the determination period shall be tolled from the date notice of insufficiency is given, until the claimant responds to the notice. The claimant shall have forty-five (45) days within which to provide the specified information.

A claim denial shall be furnished in writing or electronically. The denial shall inform the claimant of the specific reason or reasons for the denial, refer to the specific Plan provisions on which the denial is based, describe any additional material or information necessary to perfect the claim and explain why the material is necessary, describe the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following a denial of an appeal, refer to any specific guidelines that were relied upon in issuing the denial, or state that such guidelines will be provided to the claimant free of charge upon request.

If a claimant receives notice from the Committee that a claim for benefits has been denied in whole or in part, the claimant or the claimant’s duly authorized representative may, within one hundred and eighty (180) days after receipt of notice of such denial:

(a) Make written application to the Committee for a review of the decision. Such application shall be made on a form specified by the Committee and submitted with such documentation as the Committee shall prescribe.

 

26


(b) Review, upon request and free of charge, all documents, records and other information in the possession of the Committee or the Committee which are relevant to the Disability claim.

(c) Submit written comments, documents, records and other information relating to the claim.

If review of a decision is requested, such review shall be made by the Committee, which shall review all comments, documents, records, and other information submitted by the claimant relating to the Disability claim, without regard to whether such information was submitted or considered in the initial benefit determination. The Committee’s review shall not afford deference to the initial adverse benefit determination. The individual(s) conducting the decision on review shall not be the individual(s) who made the initial adverse decision, nor the subordinates of such individual(s).

In the case of an appeal involving medical judgment, the Committee shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment. The health care professional consulted shall be an individual who is neither an individual who was consulted in connection with the initial denial, nor the subordinate of any such individual.

The decision on review shall be made within forty-five (45) days after the receipt by the Committee of the request for review. If the Committee determines that an extension to process the appeal is necessary due to special circumstances, the Committee may extend the 45-day response period for up to 45 days by notifying the claimant, prior to the termination of the initial 45-day period, of the circumstances requiring the extension of time and the date by which it expects to render a decision. If the reason for the extension is the claimant’s failure to provide necessary information to decide the appeal, the determination period shall be tolled from the date notice of insufficiency is given, until the claimant responds to the notice.

Any denial of an appeal shall be furnished in writing or electronically. The denial shall inform the claimant of the specific reason or reasons for the denial, refer to the specific Plan provisions on which the denial is based, state that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim, state the claimant’s right to bring a civil action under Section 502(a) of ERISA, and refer to any specific guidelines that were relied upon in issuing the denial, or state that such guidelines will be provided to the claimant free of charge upon request.

Anything contained herein to the contrary notwithstanding, any claim filed under the Plan and any action brought in state or federal court by or on behalf of a Participant, a Beneficiary or alternate payee for the alleged wrongful denial of Plan benefits or for the alleged interference with ERISA-protected rights must be brought within one (1) year of the date of the Participant’s, the Beneficiary’s or alternate payee’s cause of action first accrues. Failure to bring any such cause of action within this one (1) year time frame shall preclude a Participant, a Beneficiary or alternate payee, or any representative of the Participant, the Beneficiary or alternate payee, from bringing the claim or cause of action. Correspondence or other communications following the mandatory appeals process described in this Section 10.5 shall have no effect on this one (1) year time frame.

 

27


10.7 Limitation of Action and Choice of Venue .

Before a claimant may bring a legal action against the Plan, the Company, a Subsidiary, or the Committee, the claimant must first complete all steps of the claims and review procedures contained in Sections 10.5 and 10.6, as applicable. After completing all steps of the claims and review procedures contained in Sections 10.5 and 10.6, as applicable, a claimant has one (1) year from the date he or she is notified of the Committee’s final decision to bring such legal action or the right to bring such legal action is lost. Any legal action against the Plan, the Company, a Subsidiary, or the Committee may only be brought in the United States District Court for the Eastern District of Missouri.

 

10.8 Successor to Company .

The Company shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation or otherwise, to all or substantially all the business or assets of the Company, expressly and unconditionally to assume and agree to perform the Company’s obligations under this Plan, in the same manner and to the same extent that the Company would be required to perform. Accordingly, this Plan and the related Deferred Compensation Agreements shall be binding upon, and the term “Company” shall include any successor or assignee to the business or assets of the Company.

 

10.9 Severability .

In the event any provision of the Plan shall be held invalid or illegal for any reason, any illegality or invalidity shall not affect the remaining parts of the Plan, but the Plan shall be construed and enforced as if the illegal or invalid provision had never been inserted, and the Company shall have the privilege and opportunity to correct and remedy such questions of illegality or invalidity by amendment as provided in the Plan.

 

10.10 Transfer Among Affiliates .

In the event the employment of a Participant is transferred from the Company to any corporation or other entity that is an affiliate of the Company and that adopts this Plan, or is transferred from one such affiliate to another, the benefits attributable to compensation deferred with respect to each such entity shall be credited to a separate bookkeeping account. Each such entity shall pay the benefit that is reflected in the Participant accounts established with respect to such entity. The Company hereby guarantees payment of the total benefit, regardless of which entity is primarily liable for payment of any portion of such benefit.

 

10.11 Entire Plan .

This document and any amendments contain all the terms and provisions of the Plan and shall constitute the entire Plan, any other alleged terms or provisions being of no effect.

 

28


10.12 Payee Not Competent .

In the event that the Committee shall find that the Participant is unable to care for his or her affairs because of illness or accident, the Committee may direct that any benefit payment due him or her, unless claim shall have been made therefor by a duly appointed legal representative, be paid to his nor her spouse, a child, a parent or other blood relative, or to a person with whom he or she resides, and any such payment so made shall be a complete discharge of the liabilities of the Plan therefor.

 

10.13 Tax Withholding .

The Company shall satisfy any federal, state or local tax withholding obligations (including income taxes and the employee portion of employment taxes) resulting from the payment or vesting of amounts credited to the Participant’s cash subaccount through the reduction of the cash subaccount of the Participant in an amount necessary to satisfy such tax obligations. The Company shall satisfy any federal, state or local tax withholding obligations (including income taxes and the employee portion of employment taxes) resulting from the payment or vesting of amounts credited to the Participant’s stock subaccount through the reduction of the stock subaccount by the number of Stock Units necessary to satisfy such tax obligations.

In the event the Stock Units credited to a Participant’s stock subaccount are reduced in satisfaction of tax obligations, the number of shares reduced shall be calculated by reference to the Market Value of the Common Stock on the date that such taxes are determined.

 

10.14 Governing Law .

To the extent not superseded by the laws of the United States, this Plan shall be construed and governed in accordance with the laws of the state of Missouri. Except where otherwise specifically required by the provisions of ERISA, the Plan, Trustee, Committee, Company or Subsidiary shall be liable to account only in the courts of the State of Missouri.

 

10.15 Compliance with Code Section 409A .

No provision of this Plan shall be operative to the extent that it will result in the imposition of the additional tax described in Code Section 409A(a)(1)(8)(i)(11) because of failure to satisfy the requirements of Code Section 409A and the regulations and guidance issued thereunder.

IN WITNESS WHEREOF, the Company has caused this Plan to be executed as of this      day of             , 2015.

 

ENERGIZER HOLDINGS, INC.
By:

 

Its:

 

 

29


APPENDIX I

Those individuals listed on Schedule I to the Employee Matters Agreement by and between Edgewell Personal Care Company and Energizer Holdings, Inc. dated as of June 25, 2015.

Exhibit 10.7

ENERGIZER HOLDINGS, INC.

EXECUTIVE SAVINGS INVESTMENT PLAN

(effective July 1, 2015)

INTRODUCTION

WHEREAS, on July 1, 2015, Edgewell Personal Care Company (f/k/a Energizer Holdings, Inc.) (“Parent”) separated its household products business from its personal care business by means of a spin-off of a newly formed subsidiary named Energizer SpinCo, Inc. (“Spinco” or “Company”), which owns the household products business, in accordance with that certain Separation and Distribution Agreement by and between the Parent and the Spinco (“Spin-Off”);

WHEREAS, in the Spin-Off, the Parent distributed pro rata to the holders of the Parent common stock 100% of the outstanding shares of the Spinco’s common stock;

WHEREAS, in connection with the Spin-Off, the Parent was renamed from “Energizer Holdings, Inc.” to “Edgewell Personal Care Company,” and Spinco was renamed from “Energizer SpinCo, Inc.” to “Energizer Holdings, Inc.;”

WHEREAS, Parent previously established the Energizer Holdings, Inc. Executive Savings Investment Plan (“Prior Grandfathered Plan”), to provide retirement benefits for eligible employees;

WHEREAS, the portion of each participant’s account under the Prior Grandfathered Plan that was earned and vested as of December 31, 2004, was frozen, except for adjustments for earnings and losses, and credited to a separate subaccount (“Prior Grandfathered Account”) to be administered in accordance with the terms of the Prior Grandfathered Plan as in effect on October 3, 2004 and the federal income tax law in effect prior to the enactment of Section 409A;

WHEREAS, the portion of each participant’s account earned or vested on or after January 1, 2005 was credited to a separate subaccount (“Prior Non-Grandfathered Account”) and was governed by the terms of the 2009 Restatement of the Energizer Holdings, Inc. Executive Savings Investment Plan and subsequent amendments thereto and by the amendment and restatement thereto effective January 1, 2015 (“Prior Plan”);

WHEREAS, the Company desires to adopt a new plan known as the Energizer Holdings, Inc. Executive Savings Investment Plan (“Plan”) effective July 1, 2015 (“Effective Date”), subject to the completion of the Spin-Off; and

WHEREAS, the Company shall be responsible for the payment of all liabilities and obligations for benefits unpaid with respect to all Prior Grandfathered Account balances of the individuals designated on Appendix I as the Company’s employees and former employees under the Prior Grandfathered Plan, and such balances shall be administered in accordance with the terms of the Prior Grandfathered Plan;


NOW, THEREFORE, effective July 1, 2015, contingent on the Spin-Off, the Company hereby adopts the Plan as follows, and the Prior Non-Grandfathered Account balances of the individuals designated on Appendix I as the Company’s employees and former employees under the Prior Plan are hereby converted into account balances under this Plan:

 

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ENERGIZER HOLDINGS, INC.

EXECUTIVE SAVINGS INVESTMENT PLAN

(effective July 1, 2015)

The Plan is maintained for a select group of management or highly compensated employees and, therefore, it is intended that the Plan will be exempt from Parts 2, 3 and 4 of Title I of ERISA. The Plan is not intended to qualify under Code Section 401. The Plan is intended to comply with the requirements of Code Section 409A.

I. DEFINITIONS

Capitalized terms used herein that are not defined herein shall have the same meaning as specified in the Energizer 401(k) Plan unless the context unambiguously requires otherwise.

1.1 “Account” means the bookkeeping account that is credited with Deferred Compensation Contributions, Company Matching Contributions and earnings and losses on such amounts as provided in Section 3.3.

1.2 “Affiliated Company” means those domestic corporations in which Energizer Holdings, Inc. owns, directly or indirectly, 50% or more of the voting stock, or any other entity so designed by the Committee.

1.3 “Beneficiary” means any person or persons (natural or otherwise) designated as such by a Participant on such forms and in such manner acceptable to the Committee; provided however, that a beneficiary designation form shall be effective only when the form is submitted in writing by the Participant and received by the Committee and such beneficiary designation form shall cancel any and all beneficiary designation forms previously signed and filed by the Participant. The beneficiary designation, if any, in effect under the Prior Plan immediately prior to the Spin-Off with respect to Participants listed on Appendix I shall be recognized under this Plan and shall be deemed the Participant’s valid Beneficiary designation hereunder, subject to permitted changes as described herein.

1.4 “Board” means the Board of Directors of the Company.

1.5 “Cause” means willful breach or failure by the Participant to perform his or her employment duties.

1.6 “CEO” means the Chief Executive Officer of the Company.

1.7 “Change of Control” means 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:

 

  (a) 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 20% or more of the total voting power of all of the Company’s then outstanding voting securities. For purposes of this Plan, the term “person” shall not include: (A) the Company or any corporation of which 50% or more of the voting stock is owned, directly or indirectly, by the Company (individually, a “Subsidiary” and collectively “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;


  (b) 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;

 

  (c) 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 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 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;

 

  (d) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company; or

 

  (e) 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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1.8 “Code” means the Internal Revenue Code of 1986, as amended.

1.9 “Committee” means the Energizer Benefits Committee, its designee, or any successor to such Committee.

1.10 “Company” means Energizer Holdings, Inc.

1.11 “Company Matching Contributions” means the amount of contributions made in accordance with Section 3.2.

1.12 “Compensation” means Compensation as defined under the SIP.

1.13 “Controlled Group” means all corporations or business entities that are, along with the Company, members of a controlled group of corporations or businesses, as defined in Code Sections 414(b) and 414(c), except that the language “at least 50 percent” is used instead of “at least 80 percent” in applying the rules of Code Sections 414(b) and 414(c).

1.14 “Deferred Compensation Contributions” means the amount of deferrals credited in accordance with Section 3.1.

1.15 “Disability” means a finding by the Committee of a Participant’s permanent and total disability.

1.16 “Employee” means a person employed by the Company or an Affiliated Company and who is one of a select group of management or highly-compensated employees.

1.17 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

1.18 “Good Reason” means any of the following: assignment of duties inconsistent with the Employee’s status or diminution in status or responsibilities from that which existed prior to the Change of Control; reduction in the Employee’s annual salary; failure of the acquiror to pay any bonus award to which the Employee was otherwise entitled, or to offer the Employee incentive compensation, stock options or other benefits or perquisites which are offered to similarly situated employees of the acquiror; relocation of the Employee’s primary office to a location greater than fifty (50) miles from his or her existing office; any attempt by the acquiror to terminate the Employee’s employment in a manner other than as expressly permitted by the Change of Control agreement(s); or the failure by the acquiror to expressly assume the Company’s obligations under the Change of Control agreement(s).

 

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1.19 “Grandfathered Account” means the vested portion of a Participant’s Account as of December 31, 2004, as adjusted for earnings or losses, as determined under the Prior Grandfathered Plan.

1.20 “Non-Grandfathered Account” means (i) the portion of a Participant’s Account that became vested on or after January 1, 2005, as adjusted for earnings and losses, as determined under the Prior Plan, (ii) contributions for periods on or after January 1, 2005 until the date of the Spin-Off, as adjusted for earnings and losses, as determined under the Prior Plan, and (iii) contributions for periods on or after the Effective Date, as adjusted for earnings and losses, as determined under this Plan.

1.21 “Participant” means an Employee who is deferring, or an Employee or former Employee who has deferred, Compensation pursuant to Article III of the Plan. In addition, Participant means any current or former employee of the Company or its subsidiaries whose name is listed on Appendix I hereto, to the extent an Account is credited with Prior Amounts on behalf of such individual under this Plan as set forth herein.

1.22 “Plan” means the Energizer Holdings, Inc. Executive Savings Investment Plan, as amended from time to time.

1.23 “Prior Amounts” means amounts credited to the Plan in accordance with Section 3.3.

1.24 “Prior Grandfathered Plan” has the meaning ascribed thereto in the Introduction.

1.25 “Prior Plan” has the meaning ascribed thereto in the Introduction.

1.26 “Retirement” means Termination of Employment at or after age 55 with 10 years of service.

1.27 “SIP” means the Energizer 401(k) Plan, as amended from time to time.

1.28 “Spin-Off” shall have the meaning ascribed thereto in the Introduction.

1.29 “Termination of Employment” means termination of employment from the Controlled Group, as determined in accordance with rules set forth in IRS regulations under Code Section 409A (generally a decrease in the performance of services to no more than 20% of the average for the preceding 36-month period); provided, however, to the extent permitted by the regulations issued under Code Section 409A, a “Termination of Employment” does not occur if a Participant is on a military leave, sick leave or other bona fide leave of absence granted by the Company or an Affiliated Company. For the avoidance of doubt, no Participant shall be treated as incurring a Termination of Employment, separation from service, retirement or other similar event for purposes of determining the right to distribution, vesting, benefits, or any other purpose under the Plan as a result of the Spin-Off.

 

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1.30 “Valuation Date” means December 31 of each Year.

1.31 “Year” means a calendar year.

II. ELIGIBILITY AND PARTICIPATION

2.1 Prior Participants . An Employee who is listed on Appendix I hereto, and who is an Employee on July 1, 2015, shall be a Participant in the Plan on July 1, 2015, subject to the termination provisions of Section 2.5.

2.2 Other Employees . An Employee who is not covered under Section 2.1 shall be eligible to participate in the Plan if he or she is designated by the CEO as eligible to participate in the Plan.

2.3 Initial Enrollment . In the case of a Participant who first becomes eligible to participate in this Plan during a Year, an election to defer Compensation in accordance with Section 3.1 may be made within 30 days after the date the Employee first becomes eligible to participate in the Plan, provided that the Employee has not previously become eligible to participate in any other nonqualified account balance plan maintained by the Company (as defined in Treasury Regulation Section 1.409A-1(c)(2)(i)(A)) or in the Prior Plan, with respect to Compensation paid for services to be performed subsequent to the election, which shall be irrevocable during such initial year of participation. With respect to Compensation which is earned based upon a specified performance period, such as an annual bonus, such initial election shall apply only to the portion of such Compensation equal to the total amount of Compensation for the performance period multiplied by the ratio of the number of days remaining in the performance period after the election over the total number of days in the performance period.

2.4 Annual Deferral Elections . An election by a Participant to defer Compensation for a Year must be submitted to the Committee no later than the December 31 st immediately preceding such Year in accordance with the rules and procedures established by the Committee. A deferral election made by a Participant is effective for an entire Year, and cannot be increased or decreased during such Year.

2.5 Termination of Coverage . A Participant (including a Participant listed on Appendix I) shall no longer be eligible to participate in the Plan including the right to defer Compensation pursuant to the Plan, effective as of the first payroll period beginning after the earlier of the following dates:

 

  (a) The date the Participant incurs a Termination of Employment;

 

  (b) The last day of the Year in which the Participant ceases to meet the eligibility requirements of either Section 2.1 or Section 2.2 of the Plan; or

 

  (c) The last day of the Year in which the Participant is designated by the CEO as ineligible to participate in the Plan.

 

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Such Participant shall continue to be a Participant in the Plan for all other purposes until distribution of his or her Account.

III. CONTRIBUTIONS

3.1 Deferrals into the Plan . A Participant may elect to reduce the amount of Compensation that the Participant would otherwise receive and defer up to 20% percent of such Compensation each Year. Deferral elections under the Plan may not be revoked except in the case of Termination of Employment. No after-tax deferrals are permitted under the Plan. On the date of the Spin-Off, all deferral elections in effect under the Prior Plan with respect to Participants listed on Appendix I hereto shall transfer to, be recognized as a deferral election by and remain in effect for the year or other applicable period to which it relates under this Plan.

3.2 Company Matching Contributions . After each Year, the Company shall credit a Participant’s Account with a Company Matching Contribution in an amount equal to (i) 100% of the first 6% of such Participant’s Compensation deferred under both the SIP (including Catch-Up Contributions) and pursuant to Section 3.1, reduced by (ii) the matching contributions credited to the Participant’s SIP account for such Year; provided however,

 

  (a) If the Participant does not contribute the maximum elective deferral amount permitted under Code Section 402(g) for such Year to the SIP, the matching contribution percentage described above shall only be applied to Compensation in excess of the applicable dollar amount limitation under Code Section 401(a)(17) for that Year under the SIP; and

 

  (b) With respect to a Year, if a Participant changes his or her deferral percentage in effect under the SIP after the December 31 st preceding such Year, the matching credit to a Participant under this Plan will be limited so that such change under the SIP shall not increase or decrease the matching credit for such Year by more than the amount permitted under Treasury Regulation Section 1.409A-2(a)(9)(iii).

3.3 Participants’ Accounts .

 

  (a) The Company shall establish a book reserve account for each Participant. As appropriate, the Company shall credit to a Participant’s Account his or her Deferred Compensation Contributions and Company Matching Contributions. The amount credited to an account under the Prior Plan as of the Spin-Off with respect to a Participant listed on Appendix I shall be credited to such Participant’s Account as Prior Amounts under this Plan and shall include earnings and losses hereunder. For the avoidance of doubt, and notwithstanding anything herein to the contrary, any amounts credited to a Grandfathered Account with respect to a Participant listed on Appendix I shall be administered in accordance with the terms and conditions of the Prior Grandfathered Plan.

 

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  (b) Each Participant’s Account balance shall be credited on a daily basis with earnings or losses equal to the rate of earnings or losses of the SIP funds that the Participant has designated as investment choices.

 

  (c) Each Participant shall be furnished quarterly a statement setting forth the value of his or her Account.

IV. VESTING OF CONTRIBUTIONS

4.1 Vesting of Deferred Compensation . Each Participant shall be vested at all times in the amounts credited to his or her Account attributable to his or her Deferred Compensation Contributions, and earnings thereon.

4.2 Vesting of Company Matching Contributions . A Participant shall be vested in the amounts credited to his or her Account attributable to Company Matching Contributions and earnings thereon as follows:

 

  (a) at the rate of 25% for each Period of Service in whole years (as defined in the SIP); or

 

  (b) 100% vested upon the occurrence of any one of the following:

 

  (1) attainment of age 65;

 

  (2) Retirement;

 

  (3) Disability;

 

  (4) death;

 

  (5) Change of Control, if the Participant’s employment with the Company and all Affiliated Companies is terminated within twelve (12) months following such Change of Control, if such termination of employment is by the Participant for Good Reason, or such termination of employment is by the Company or an Affiliated Company, for any reason other than for Cause; or

 

  (6) termination of the Plan.

Prior service recognized for vesting purposes under the Prior Plan as of the date of the Spin-Off shall be counted as service for vesting under this Plan. Matching contributions credited as Prior Amounts shall be subject to the foregoing vesting provisions, provided that periods of service (as determined under the Prior Plan) shall be included for purposes of determining Periods of Service under this Plan with respect to such Prior Amounts.

 

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V. DISTRIBUTIONS

5.1 Time of Distribution to Participant . The vested portion of the Participant’s Account shall be paid (or commence to be paid in the case of installment payments) on the sixth month anniversary of the date of such Participant’s Termination of Employment.

5.2 Distribution Upon Death . In the event of the Participant’s death, the Participant’s Account shall be paid to the Participant’s Beneficiary. In the event the Participant has not designated a Beneficiary or the Beneficiary so designated predeceases the Participant, then benefits shall be paid to the Participant’s estate or as provided by law. If distribution of benefits has not already commenced pursuant to Section 5.1, distribution of benefits shall commence no later than 90 days following the Participant’s death, provided that Beneficiary may not designate the calendar year in which distribution will be made. The Committee reserves the right to review and approve Beneficiary designations.

5.3 Amount to be Distributed . At the time of distribution set forth in Sections 5.1 or 5.2, the Company shall distribute the vested portion of the Participant’s Account. Earnings on the vested portion of a Participant’s Account shall be credited to the Participant’s Account for the period between the most recent Valuation Date and the date of distribution of the Account.

5.4 Form of Distribution . The distribution of a Participant’s Account pursuant to this Article V shall be made in the form of payment elected by the Participant in his or her Initial Deferral Election and shall be in the form of a single lump payment, five annual installments or ten annual installments. A Participant shall be permitted to change the form of distribution initially elected provided that (i) such election or change is made at least twelve (12) months prior to the date the first distribution is to be made, and (ii) the new benefit commencement date is at least five (5) years after the first distribution would otherwise be made, and (iii) the new election is not effective until twelve (12) months after the date the new election is made. No participant may change the form of payment initially elected more than once. For purposes of subsequent changes in the time and form of payment under Code Section 409A, the right to the series of installment payment is to be treated as the right to a single payment. In the event of the death of a Participant, benefits will be distributed to the Beneficiary in the form elected by the Participant.

Notwithstanding anything to the contrary, Prior Amounts shall be distributed at the time and in the manner and form as determined under the Prior Plan as of the Spin-Off. Distribution elections effective under the Prior Plan as of the Spin-Off with respect to Participants listed on Appendix I shall be recognized under this Plan, subject to permitted modifications described herein and otherwise permitted by the Committee. For the avoidance of doubt, Grandfathered Accounts will be administered in accordance with the terms and conditions of the Prior Grandfathered Plan, including with respect to the time and form of distribution.

 

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5.5 Withdrawals and Loans .

 

  (a) Loans are not permitted under the Plan.

 

  (b) A Participant (or, after a Participant’s death, his or her Beneficiary) may request a withdrawal of all or a portion of his or her vested Account on account of a severe financial hardship in accordance with such rules and procedures prescribed by the Committee. The Participant (or his or her Beneficiary) shall be paid the withdrawal amount as soon as practicable after the Committee approves his or her request. The payment of this withdrawal amount shall not be subject to the deduction limitation under Code Section 162(m).

 

  (c) If the Committee determines that a Participant has incurred a severe financial hardship, the Committee may make a cash distribution to the Participant of the portion of the vested balance of his or her Account needed to satisfy the severe financial hardship (including taxes reasonably anticipated as a result of such distribution), to the extent that the severe financial hardship may not be relieved:

 

  (1) Through reimbursement or compensation by insurance or otherwise; or

 

  (2) By liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship.

 

  (d) A “severe financial hardship” is a Participant’s need for a distribution, as determined by the Committee, resulting from:

 

  (1) A sudden and unexpected illness or accident of the Participant or of a dependent or close family member of the Participant;

 

  (2) Loss of the Participant’s property due to casualty;

 

  (3) Any other events specified as “unforeseeable emergencies” under Code Section 409A and the regulations and guidance thereunder;

 

  (4) Other extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant as permitted under Code Section 409A.

 

  (e) The Committee shall determine whether the Participant has satisfied the requirements of this Section 5.5. The Committee may decline a request for a distribution under this Section 5.5 if the Committee determines that such distribution is not in the best interests of the Company. All determinations made by the Committee pursuant to this Section 5.5 shall be binding on all parties.

 

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VI. FORFEITURES

6.1 Time of Forfeiture . Any amount of Company Matching Contributions or matching contributions included in Prior Amounts from the Prior Plan in which a Participant is not vested shall be forfeited upon the Participant’s Termination of Employment.

VII. AMENDMENT AND ADMINISTRATION OF THE PLAN

7.1 Power to Amend or Termination Plan . The power to amend or modify the Plan at any time is reserved to the Committee, provided that, no amendment or modification may affect the terms of any deferral of Compensation deferred prior to the effective date of such amendment or modification without the consent of the Participant or Beneficiary affected thereby. The Committee may terminate the Plan, and distribute all vested accrued benefits, subject to the restrictions set forth in Treas. Reg. §1.409A-3(j)(4). A termination of the Plan must comply with the provisions of Code Section 409A and the regulations and guidance promulgated thereunder, including, but not limited to, restrictions on the timing of final distributions and the adoption of future deferred compensation arrangements.

7.2 Administration of the Plan . The Committee shall administer the Plan in its sole discretion and, in connection therewith, shall have full power to construe and interpret the Plan; to establish rules and regulations; to delegate responsibilities to others to assist it in administering the Plan or performing any responsibilities hereunder; and to perform all other acts it believes reasonable and proper in connection with the administration of the Plan.

The interpretation of the Plan or other action of the Committee made in good faith in its sole discretion shall be subject to review only if such an interpretation or other action is without a rational basis. Any review of a final decision or action of the Committee shall be based only on such evidence presented to or considered by the Committee at the time it made the decision that is the subject of the review. The Company and any Affiliated Company whose Employees are covered by the Plan and any Employee who is or may be covered by the Plan hereby consent to actions of the Committee made in its sole discretion and agree to be bound by the narrow standard of review prescribed in this Section.

VIII. MISCELLANEOUS

8.1 Company’s Obligations Unfunded . All benefits due a Participant or Beneficiary under the Plan are unfunded and unsecured and are payable out of the general funds of the Company or Affiliated Company. The Company, in its sole and absolute discretion, may establish a grantor trust for the payment of benefits and obligations hereunder, the assets of which shall be at all times subject to the claims of creditors of the Company or the respective Affiliated Company for which the Participant was employed when contributions were made for such Participant as provided for in such trust, provided that such trust does not alter the characterization of the Plan as an unfunded plan for purposes of ERISA. Such trust shall make distributions in accordance with the terms of the Plan.

 

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8.2 No Right to Continued Employment . Neither the establishment of the Plan nor the payment of any benefits thereunder nor any action of the Company, any Affiliated Company, the Board, or the Committee shall be held or construed to confer upon any person any legal right to be continued in the employ of the Company or an Affiliated Company.

8.3 Non-Alienation of Benefits . No right or benefit under the Plan shall be subject to anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber, or change any right or benefit under this Plan shall be void. No right or benefit hereunder shall in any manner be liable for or subject to the debts, contracts, liabilities or torts of the person entitled to such benefits. If the Participant or Beneficiary becomes bankrupt, or attempts to anticipate, alienate, sell, assign, pledge, encumber, or change any right hereunder, then such right or benefit shall, in the discretion of the Committee, cease and terminate, and in such event, the Committee may hold or apply the same or any part thereof for the benefit of the Participant or Beneficiary, spouse, children, or other dependents, or any of them in such manner and in such amounts and proportions as the Committee may deem proper. Notwithstanding anything in this Section to the contrary, the Committee may comply with a qualified domestic relations order as defined in Code section 414(p); provided however, that for purposes of this Section 8.3, the provisions of Code section 414(p)(9) shall be disregarded and shall have no force and effect in applying the provisions of Code section 414(p). Anything contained herein to the contrary notwithstanding, benefits payable from the Plan under this Section 8.3 to an alternate payee pursuant to a qualified domestic relations order shall be paid only in the form of a lump sum payment as soon as practicable after the order is determined to constitute a qualified domestic relations order. The Committee may establish procedures similar to those described in Code sections 414(p)(6) and (7), in lieu of the procedures set forth in Code sections 414(p)(6) and (7), for evaluating domestic relations orders and for handling benefits while domestic relations orders are being evaluated.

8.4 Address of Participant or Beneficiary . A Participant shall keep the Committee apprised of the Participant’s current address and that of any Beneficiary at all times during participation in the Plan. At the death of a Participant, a Beneficiary who is entitled to receive payment of benefits under the Plan shall keep the Committee apprised of such Beneficiary’s current address until the entire amount to be distributed has been paid.

8.5 Taxes . The Company shall satisfy any federal, state, or local tax withholding obligation from any payment due hereunder. The Company shall satisfy any withholding obligation for the employee portion of employment taxes resulting from vesting of amounts credited to a Participant’s Account through the reduction of a Participant’s paycheck in an amount necessary to satisfy such tax obligation.

8.6 Missouri Law to Govern . All questions pertaining to the interpretation, construction, administration, validity and effect of the provisions of the Plan shall be determined in accordance with the laws of the State of Missouri.

8.7 Claims and Appeals Procedures . A Participant or Beneficiary may claim any benefit to which he or she is entitled under this Plan by a written notice to the Committee. If a

 

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claim is denied, it must be denied within ninety (90) days after receipt of the claim, unless special circumstances require an extension. If an extension is necessary, the extension shall not be longer than an additional ninety (90) days. Any denial shall be in a written notice stating the following:

(a) The specific reason for the denial.

(b) Specific reference to the Plan provision on which the denial is based.

(c) Description of additional information necessary for the claimant to present his or her claim, if any, and an explanation of why such material is necessary.

(d) An explanation of the Plan’s claims review procedures, and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review.

If the Committee does not deny the claim within the time specified above, the claimant may commence action in state or federal court.

The claimant will have sixty (60) days to request a review of the denial by the Committee, which will provide a full and fair review. The request for review must be in writing delivered to the Committee. The claimant may review pertinent documents, and he or she may submit issues and comments in writing. The decision by the Committee with respect to the review must be given within sixty (60) days after receipt of the request, unless special circumstances require an extension (such as for a hearing). In no event shall the decision be delayed beyond one hundred and twenty (120) days after receipt of the request for review. The decision shall be written in a manner calculated to be understood by the claimant, shall include specific reasons and refer to specific Plan provisions as to its effect, state that the claimant is entitled to receive upon request and free of charge, reasonable access to and copies of, all documents, records and other information relevant to the claim, and state that the claimant has a right to bring a civil action under Section 502(a) of ERISA.

Anything contained herein to the contrary notwithstanding, any claim filed under the Plan and any action brought in state or federal court by or on behalf of a Participant, a Beneficiary or alternate payee for the alleged wrongful denial of Plan benefits or for the alleged interference with ERISA-protected rights must be brought within one (1) year of the date of the Participant’s, the Beneficiary’s or alternate payee’s cause of action first accrues. Failure to bring any such cause of action with this one (1) year time frame shall preclude a Participant, a Beneficiary or alternate payee, or any representative of the Participant, the Beneficiary or alternate payee, from bringing the claim or cause of action. Correspondence or other communications following the mandatory appeals process described in this Section 8.7 shall have no effect on this one (1) year time frame.

8.8 Disability Claims and Appeals Procedures . Notwithstanding anything to the contrary in Section 8.7 above, if a determination of Disability must be made in order to decide a claim, the claim shall be considered a Disability claim and shall be subject to the following procedures.

 

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The Committee shall process each Disability claim and make an initial decision as to the validity of the claim within a reasonable period of time, but no later than forty-five (45) days after receipt of the claim. If the Committee determines that an extension to process the Disability claim is necessary due to matters beyond the control of the Committee, the Committee may extend the 45-day response period for up to thirty (30) days by notifying the claimant, prior to the termination of the initial 45-day period, of the circumstances requiring the extension of time and the date by which it expects to render a decision. If the Committee determines that an additional extension to process the Disability claim is necessary due to matters beyond the control of the Committee, the Committee may extend the response period for up to an additional thirty (30) days by notifying the claimant, prior to the termination of the first 30-day extension period, of the circumstances requiring the extension of time and the date by which it expects to render a decision. An extension notice shall specifically explain the standards on which entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim, and the additional information needed to resolve those issues. If the reason for the extension is the claimant’s failure to provide necessary information to decide the claim, the determination period shall be tolled from the date notice of insufficiency is given, until the claimant responds to the notice. The claimant shall have forty-five (45) days within which to provide the specified information.

A claim denial shall be furnished in writing or electronically. The denial shall inform the claimant of the specific reason or reasons for the denial, refer to the specific Plan provisions on which the denial is based, describe any additional material or information necessary to perfect the claim and explain why the material is necessary, describe the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under Section 502(a) of ERISA following a denial of an appeal, refer to any specific guidelines that were relied upon in issuing the denial, or state that such guidelines will be provided to the claimant free of charge upon request.

If a claimant receives notice from the Committee that a claim for benefits has been denied in whole or in part, the claimant or the claimant’s duly authorized representative may, within one hundred and eighty (180) days after receipt of notice of such denial:

(a) Make written application to the Committee for a review of the decision. Such application shall be made on a form specified by the Committee and submitted with such documentation as the Committee shall prescribe.

(b) Review, upon request and free of charge, all documents, records and other information in the possession of the Committee or the Committee which are relevant to the Disability claim.

(c) Submit written comments, documents, records and other information relating to the claim.

 

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If review of a decision is requested, such review shall be made by the Committee, which shall review all comments, documents, records, and other information submitted by the claimant relating to the Disability claim, without regard to whether such information was submitted or considered in the initial benefit determination. The Committee’s review shall not afford deference to the initial adverse benefit determination. The individual(s) conducting the decision on review shall not be the individual(s) who made the initial adverse decision, nor the subordinates of such individual(s).

In the case of an appeal involving medical judgment, the Committee shall consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment. The health care professional consulted shall be an individual who is neither an individual who was consulted in connection with the initial denial, nor the subordinate of any such individual.

The decision on review shall be made within forty-five (45) days after the receipt by the Committee of the request for review. If the Committee determines that an extension to process the appeal is necessary due to special circumstances, the Committee may extend the 45-day response period for up to 45 days by notifying the claimant, prior to the termination of the initial 45-day period, of the circumstances requiring the extension of time and the date by which it expects to render a decision. If the reason for the extension is the claimant’s failure to provide necessary information to decide the appeal, the determination period shall be tolled from the date notice of insufficiency is given, until the claimant responds to the notice.

Any denial of an appeal shall be furnished in writing or electronically. The denial shall inform the claimant of the specific reason or reasons for the denial, refer to the specific Plan provisions on which the denial is based, state that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim, state the claimant’s right to bring a civil action under Section 502(a) of ERISA, and refer to any specific guidelines that were relied upon in issuing the denial, or state that such guidelines will be provided to the claimant free of charge upon request.

Anything contained herein to the contrary notwithstanding, any claim filed under the Plan and any action brought in state or federal court by or on behalf of a Participant, a Beneficiary or alternate payee for the alleged wrongful denial of Plan benefits or for the alleged interference with ERISA-protected rights must be brought within one (1) year of the date of the Participant’s, the Beneficiary’s or alternate payee’s cause of action first accrues. Failure to bring any such cause of action with this one (1) year time frame shall preclude a Participant, a Beneficiary or alternate payee, or any representative of the Participant, the Beneficiary or alternate payee, from bringing the claim or cause of action. Correspondence or other communications following the mandatory appeals process described in this Section 10.5 shall have no effect on this one (1) year time frame.

8.9 Limitation of Action and Choice of Venue . Before a claimant may bring a legal action against the Plan, the Company, a Subsidiary, or the Committee, the claimant must first complete all steps of the claims and review procedures contained in Sections 8.7 and 8.8, as

 

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applicable. After completing all steps of the claims and review procedures contained in Sections 8.7 and 8.8 as applicable, a claimant has one (1) year from the date he or she is notified of the Committee’s final decision to bring such legal action or the right to bring such legal action is lost. Any legal action against the Plan, the Company, a Subsidiary, or the Committee may only be brought in the United States District Court for the Eastern District of Missouri.

8.10 Headings . Headings of Articles and Sections of the Plan are inserted for convenience of reference. They constitute no part of the Plan.

8.11 Compliance with Code Section 409A . No provision of this Plan 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, this Plan is executed as of the      day of             , 2015.

 

ENERGIZER HOLDINGS, INC. (F/K/A ENERGIZER SPINCO, INC.)
By:

 

Its:

 

 

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