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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:
January 19, 2007
---------------------------------------------------
(Date of earliest event reported)
SPECTRUM BRANDS, INC.
- -------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Wisconsin 001-13615 22-2423556
(State or other Jurisdiction (Commission File No.) (IRS Employer
of Incorporation) Identification No.)
Six Concourse Parkway, Suite 3300, Atlanta, Georgia 30328
(Address of principal executive offices, including zip code)
(770) 829-6200
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
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:
|_| 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; ARRANGEMENTS OF CERTAIN OFFICERS.
(e) Employment Agreements
---------------------
Effective January 16, 2007, Spectrum Brands, Inc. (the "Company")
entered into amended and restated employment agreements with John A. Heil, the
Company's President - Global Pet, and David R. Lumley, the Company's President
- - North America. The following description of the amended and restated
employment agreements with Messrs. Heil and Lumley is qualified in its entirety
by reference to the terms of such agreements, which are filed as Exhibits 10.1
and 10.2 hereto, respectively.
The amended and restated employment agreements with Messrs. Heil and
Lumley have a term which runs through September 30, 2010 and is subject to
automatic one year renewals. Each of these employment agreements provides that
the executive officer has the right to resign and terminate his respective
employment agreement at any time upon providing at least 60 days' notice. Upon
such resignation, the Company must pay any unpaid base salary through the date
of termination to the resigning executive officer.
Each employment agreement provides generally that upon the Company's
termination of the executive officer's employment without cause or for death or
disability, the Company will pay to the terminated executive officer, or such
executive officer's estate, two times the executive officer's base salary and
annual bonus, to be paid out over the following 24 months, plus a pro rata
bonus for the year of termination. Each employment agreement also provides that
if the executive officer resigns upon the occurrence of specified circumstances
that would constitute "Good Reason" (as defined therein), the executive
officer's resignation shall be treated as a termination by the Company without
cause.
Under each employment agreement, the Company has the right to
terminate the executive officer's employment for "cause" (as defined therein),
in which event the Company shall be obligated to pay to the terminated
executive officer any unpaid base salary accrued through the date of
termination. Each employment agreement also provides that, during the term of
the employment agreement or the period of time served as an employee, and for
one year thereafter, the executive officer shall not provide services of the
same or similar kind that he provides to the Company, have a significant
financial interest in any competitor of the Company or solicit any of the
Company's customers or employees.
Under their respective employment agreements, beginning January 10,
2007, Mr. Heil became entitled to a base salary of $450,000 per annum and Mr.
Lumley became entitled to a base salary of $525,000 per annum. The Company's
Board of Directors will review these base salaries from time to time and may
increase them in its discretion. Each executive officer also is entitled to an
annual bonus equal to their annual salary, subject to the Company achieving
certain annual performance goals established by the Board of Directors.
Pursuant to their employment agreements, Messrs. Heil and Lumley are
entitled to participate in the Company's equity-based compensation plans. Each
of Messrs. Heil and Lumley will receive restricted stock grants under the 2004
Rayovac Incentive Plan (the "Plan") on February 1, 2007. On this date, Messrs.
Heil and Lumley will each receive 50,000 shares of the Company's common stock.
All of the shares are subject to time-based restrictions. In addition,
restrictions will lapse on all shares in the event of a change in control of
the Company, as defined in the Plan, or the sale of certain Company assets.
Upon the termination of a recipient's employment with the Company for any
reason other than a termination of the executive's employment by the Company
without cause, a termination by the executive for "Good Reason" or death or
disability, such recipient shall forfeit to the Company all shares for which
restrictions have not lapsed as of the date of such termination.
The form of Restricted Stock Award Agreement pursuant to which the
preceding restricted stock grants will be made has been previously filed by the
Company as Exhibit 10.4 to the Company's Current Report on Form 8-K filed April
7, 2005, and the preceding description of the terms of these restricted stock
grants is qualified in its entirety by reference to the terms of such
agreement. The Restricted Stock Award Agreements will incorporate the terms of
the Plan, which was filed as Exhibit 10.24 to the Company's Quarterly Report on
Form 10-Q for the period ended June 27, 2004.
Commencing with fiscal year 2008 and subject to approval by the Board
of Directors, Messrs. Heil and Lumley are eligible to receive each fiscal year
a Company-stock based award or other consideration, valued at 150% of their
respective base salaries, with such award containing vesting conditions to be
based on Company performance objectives established by the Board of Directors.
Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
10.1 Amended and Restated Employment Agreement, effective as of
January 16, 2007, by and between the Company and John A. Heil.
10.2 Amended and Restated Employment Agreement, effective as of
January 16, 2007, by and between the Company and David R. Lumley.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: January 19, 2007 SPECTRUM BRANDS, INC.
By: /s/ Randall J. Steward
-----------------------------
Name: Randall J. Steward
Title: Executive Vice President and
Chief Financial Officer
EXHIBIT INDEX
Exhibit Description
- ------- -----------
10.1 Amended and Restated Employment Agreement, effective as of
January 16, 2007, by and between the Company and John A. Heil.
10.2 Amended and Restated Employment Agreement, effective as of
January 16, 2007, by and between the Company and David R.
Lumley.
Exhibit 10.1
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of the 16th day of January, 2007, by and between Spectrum
Brands, Inc., a Wisconsin corporation (the "Company") and John A. Heil (the
"Executive").
WHEREAS, the Company and the Executive wish to amend and restate the
provisions of Executive's April 1, 2005 Employment Agreement with the Company
as the Company desires to employ the Executive upon the terms and conditions
set forth herein; and
WHEREAS, the Executive is willing and able to accept such employment
on such terms and conditions; and
WHEREAS, Executive's continued employment with the Company is
expressly conditioned upon the agreement by the Executive to the terms and
conditions of such employment as contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein (promises that include benefits to which Executive would not
otherwise be entitled or receive), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Executive hereby agree as follows:
1. Employment Duties and Acceptance. The Company hereby employs the
Executive, and the Executive agrees to serve and accept employment
with the Company as Co-Chief Operating Officer, reporting directly to
the Chairman and Chief Executive Officer of the Company, with
responsibility for managing the Company's global pet supply and
aquatic business (the "Pet Business"). During the Term (as defined
below) the Executive shall devote substantially all of his working
time and efforts to such employment.
2. Term of Employment. Subject to termination of employment Section 4
hereof, the Executive's employment and appointment hereunder shall be
for a term commencing on the date hereof and expiring on September 30,
2010 (the "Initial Term"). Upon expiration of the Initial Term and
subject to termination of employment under Section 4 hereof, this
Agreement shall automatically extend for successive renewal periods of
one (1) year ("Renewal Term(s)"). The Initial Term and any Renewal
Terms shall be collectively referred to as the "Term".
3. Compensation. So long as Executive's employment has not been
terminated pursuant to Section 4 hereof, in consideration of the
performance by the Executive of his duties hereunder, the Company
shall pay or provide to the Executive the following compensation and
such other compensation as the Board may determine which the Executive
agrees to accept in full satisfaction for his services, it being
understood that necessary withholding taxes, FICA contributions and
the like shall be deducted from such compensation:
(a) Base Salary. The Executive shall receive a base salary of
Four Hundred and Fifty Thousand Dollars ($450,000) per annum
effective January 10, 2007 for the duration of the Term
("Base Salary"), which Base Salary shall be paid in equal
semi-monthly installments each year, to be paid semi-monthly
in arrears. The Board of Directors of the Company (the
"Board") will review from time to time the Base Salary
payable to the Executive hereunder and may, in its
discretion, increase the Executive's Base Salary. Any such
increased Base Salary shall be and become the "Base Salary"
for purposes of this Agreement.
(b) Bonus. The Executive shall receive a bonus for each fiscal
year ending during the Term, payable annually in arrears,
which shall be based on a target of One Hundred Percent
(100%) of Base Salary paid during such fiscal year, provided
the Company achieves certain annual performance goals
established by the Board from time to time (the "Bonus"). The
Board may, in its discretion, increase the annual Bonus. Any
such increased annual Bonus shall be and become the "Bonus"
for such fiscal year for purposes of this Agreement.
(c) Insurance Coverages. The Executive shall be entitled to such
insurance and all other benefits as are generally made
available from time to time by the Company to its executive
officers who report to the Chief Executive Officer.
(d) Existing Stock-Based Awards. All restricted stock awards
previously granted to the Executive shall remain in full
force and effect in accordance with their terms.
(e) New Restricted Stock Award. The Company shall grant the
Executive restricted shares of the Company's common stock as
follows. On February 1, 2007, Executive shall be awarded
50,000 shares of the Company's common stock, shares that will
include restrictions prohibiting the sale, transfer, pledge,
assignment or other encumbrance of such stock ("Restricted
Shares"), provided, however, that all such restrictions shall
lapse on January 10, 2010. Notwithstanding anything else set
forth above, (i) restrictions on Restricted Shares shall also
lapse on the earlier of a change in control of the Company
(as defined in the company's stock plan governing such award)
("Change in Control"), or the sale by the Company of all or
substantially all of the stock or assets of the Pet Business
("Sale of the Pet Business"), and (ii) any unlapsed shares of
Restricted Stock shall be forfeited to the Company in the
event the Executive's employment with the Company terminates
prior to the earlier of a Change in Control or the Sale of
the Pet Business, for any reason other than a termination of
Executive's employment by the Company without Cause, by
Executive for Good Reason or upon death or Disability
hereunder. Additional terms and conditions of such restricted
stock award shall be set forth in an agreement with such
terms and conditions being substantially similar (other than
as set forth above) to the terms and conditions of restricted
stock award granted to Executive on October 2, 2006.
(f) Long-Term Incentive Award. Subject to Board approval,
Executive shall be eligible to receive each fiscal year
during the Term (commencing with fiscal year 2008) a
Company-stock based award or other consideration valued at
150% of Executive's Base Salary at the time of the award, and
with such award containing certain vesting conditions to be
based on achievement of Company's performance objectives
established by the Board from time to time. In the event such
award provides for accelerated vesting upon Change in
Control, such accelerated vesting shall also apply upon a
Sale of the Pet Business.
(g) Vacation. The Executive shall be entitled to four (4) weeks
vacation each year.
(h) Other Expenses. The Executive shall be entitled to
reimbursement of all reasonable and documented expenses
actually incurred or paid by the Executive in the performance
of the Executive's duties under this Agreement, upon
presentation of expense statements, vouchers or other
supporting information in accordance with Company policy. All
expense reimbursements and other perquisites of the Executive
are reviewable periodically by the Compensation Committee of
the Board.
(i) Vehicle Allowance. Subject to the Company's policy in effect
from time to time, during the Executive's employment, a
monthly auto allowance of Fifteen Hundred Dollars ($1500)
will be paid subject to normal withholdings.
(j) D&O Insurance. The Executive shall be entitled to
indemnification from the Company to the maximum extent
provided by law, but not for any action, suit, arbitration or
other proceeding (or portion thereof) initiated by the
Executive, unless authorized or ratified by the Board. Such
indemnification shall be covered by the terms of the
Company's policy of insurance for directors and officers in
effect from time to time (the "D&O Insurance"). Copies of the
Company's charter, by-laws and D&O Insurance will be made
available to the Executive upon request.
(k) Legal Fees. The Company shall pay the Executive's actual and
reasonable legal fees incurred in connection with the
preparation of this Agreement.
4. Termination.
(a) Termination by the Company with Cause. The Company shall have
the right at any time to terminate the Executive's employment
hereunder upon written notice upon the occurrence of any of
the following (any such termination being referred to as
termination for "Cause"):
(i) the commission by the Executive of any deliberate
and premeditated act taken by the Executive in bad
faith against the interests of the Company;
(ii) the Executive has been convicted of, or pleads nolo
contendere with respect to any felony, or of any
lesser crime or offense having as its predicate
element fraud, dishonesty or misappropriation of the
property of the Company;
(iii) the habitual drug addiction or intoxication of the
Executive which negatively impacts his job
performance or the Executive's failure of a
company-required drug test;
(iv) the willful failure or refusal of the Executive to
perform his duties as set forth herein or the
willful failure or refusal to follow the direction
of the CEO, provided such failure or refusal
continues after thirty (30) days of the receipt of
notice in writing from the Board of such failure or
refusal, which notice refers to this Section 4(a)
and indicates the Company's intention to terminate
the Executive's employment hereunder if such failure
or refusal is not remedied within such thirty (30)
day period; or
(v) the Executive materially breaches any of the terms
of this Agreement or any other agreement between the
Executive and the Company which breach is not cured
within thirty (30) days subsequent to notice from
the Company to the Executive of such breach, which
notice refers to this Section 4(a) and indicates the
Company's intention to terminate the Executive's
employment hereunder if such breach is not cured
within such thirty (30) day period.
If such definition of termination for "Cause" set
forth above conflicts with such definition in the
Executive's time based or performance based stock
option or restricted stock agreements (collectively,
the "Stock Agreements"), or any agreements referred
to therein, the definition set forth herein shall
control.
(b) Termination by Company for Death or Disability. The Company
shall have the right at any time to terminate the Executive's
employment hereunder upon thirty (30) days prior written
notice upon the Executive's inability to perform his duties
hereunder by reason of any mental, physical or other
disability for a period of at least six (6) consecutive
months (for purposes hereof, "disability" has the same
meaning as in the Company's disability policy), if within 30
days after such notice of termination is given, the Executive
shall not have returned to the full-time performance of his
duties. The Company's obligations hereunder shall, subject to
the provisions of Section 5(b), also terminate upon the death
of the Executive.
(c) Termination by Company without Cause. The Company shall have
the right at any time to terminate the Executive's employment
for any other reason without Cause upon sixty (60) days prior
written notice to the Executive. Any failure by the Company
to renew the Term of this Agreement shall be deemed a
termination by the Company without Cause as of the expiration
of the Term for all purposes of this Agreement.
(d) Voluntary Termination by Executive. The Executive shall be
entitled to voluntarily terminate his employment (without
Good Reason) hereunder upon sixty (60) days prior written
notice to the Company. Any such termination shall be treated
as a termination by the Company for "Cause" under Section 5.
(e) Termination by the Executive for Good Reason. The Executive
shall be entitled to terminate his employment and appointment
hereunder upon the occurrence of Good Reason. Any such
termination shall be treated as a termination by the Company
without Cause. For this purpose, a "Good Reason" shall mean:
(i) any reduction, not consented to by Executive, in
Executive's Base Salary or target annual bonus
opportunity then in effect;
(ii) the relocation, not consented to by Executive, of
the Company's office at which Executive is
principally employed as of the date hereof to a
location more than forty (40) miles from such
office, or the requirement by the Company that
Executive be based at an office other than the
Company's office at such location on an extended
basis, except for required travel on the Company's
business to an extent substantially consistent with
Executive's business travel obligations;
(iii) a substantial diminution or other substantive
adverse change, not consented to by Executive, in
the nature or scope of Executive's responsibilities,
authorities, powers, functions or duties;
(iv) a breach by the Company of any of its other material
obligations under this Agreement and the failure of
the Company to cure such breach within thirty (30)
days after written notice thereof by Executive; or
(v) the failure of the Company to obtain the agreement
from any successor to the Company to assume and
agree to perform this Agreement; or
(vi) a Sale of the Pet Business to a third party
unaffiliated with the Company, provided, however,
(a) that Executive shall only have the right to
terminate his employment for Good Reason under this
Section 4(e)(vi) by providing notice to the Company
to this effect during the sixty (60) day period
preceding the one (1) year anniversary of the
closing of the Sale of the Pet Business with such
termination of employment to be effective on the one
(1) year anniversary date of such closing and (b)
that as a further condition Executive shall have
remained employed by the acquirer of the Pet
Business during the full one (1) year period
following such closing date. Notwithstanding
anything else in this Agreement to the contrary, and
provided that Executive remain employed by such
acquirer of the Pet Business for the full one (1)
year following such closing, the Executive's annual
Bonus payment applicable to such one (1) year period
shall equal at least 100% of the target amount.
Further in this regard, should Executive's
employment in connection with the Pet Business not
be terminated prior to or at the closing of the Sale
of the Pet Business or should Executive's employment
be terminated by the Company without Cause in
relation to the Sale of the Pet Business, the
Company shall deposit on such closing date an amount
equal to double the sum of (i) Executive's Base
Salary and (ii) the target Bonus amount Executive
would be eligible to receive if the Company met 100%
of the applicable performance goals established by
the Board or, if higher, the amount determined
pursuant to Section 3(b) for the fiscal year ending
immediately prior to the closing of the Sale of the
Pet Business ("Severance Amount") into a reasonable
and customary escrow account to secure Executive's
potential severance benefits under this Section.
Should Executive (a) be terminated with Cause or
should he voluntarily terminate his employment with
the acquirer before the expiration of the one year
period following the closing of the Sale of the Pet
Business or (b) not elect to terminate his
employment for Good Reason within the sixty (60) day
notice period set forth above, the full escrow
amount shall be returned to the Company and the
Company shall have no further obligation in this
regard.
Notwithstanding anything else in this Agreement to
the contrary, should Executive's employment be
terminated without Cause or by reason of Death or
Disability following the Closing Date but before the
first anniversary of the closing date of the Sale of
the Pet Business or upon his proper election to
terminate his employment for Good Reason as
permitted hereunder, the escrow agent shall pay out
the Severance Amount to the Executive over
twenty-four (24) months as described in Section
5(b)(i) commencing on Executive's termination, and
Company shall have no other severance obligations
under Section 5(b)(i) in this regard. Any and all
interest on sums held in escrow shall be paid to
Company.
Notwithstanding the foregoing, if any payment in
accordance with this paragraph would subject the
Executive to tax under section 409A of the Internal
Revenue Code of 1986, as amended, then payment will
be suspended until the first date as of which
payment can be made without subjecting the Executive
to such tax, at which time a lump sum payment of
suspended payments will be made to Executive.
For purposes of any stock option agreements or restricted
stock award agreements, termination for Good Reason shall be
treated as a termination of employment by the Company without
"Cause."
(f) Notice of Termination. Any termination (except due to the
death of the Executive) shall be communicated by Notice of
Termination to the other party hereto given in accordance
with Section 8. For purposes of this Agreement, a "Notice of
Termination" means a written notice given prior to the
termination which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment
under the provision so indicated and (iii) if the termination
date is other than the date of receipt of such notice,
specifies the termination date of this Agreement (which date
shall be not more than fifteen (15) days after the giving of
such notice, unless a longer notice is required pursuant to
another section of this Agreement). The failure by any party
to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause or Good
Reason shall not waive any right of such party hereunder or
preclude such party from asserting such fact or circumstance
in enforcing its rights hereunder.
5. Effect of Termination of Employment.
(a) Termination by the Company With Cause or Voluntarily by the
Executive. If the Executive's employment is terminated by the
Company with Cause or if Executive voluntarily terminates his
employment hereunder (except for Good Reason), the
Executive's salary and other benefits specified in Section 3
shall cease at the time of such termination, and the
Executive shall not be entitled to any compensation specified
in Section 3 which was not required to be paid prior to such
termination; provided, however, that the Executive shall be
entitled to continue to participate in the Company's medical
benefit plans to the extent required by law. Upon any such
termination of employment, the company shall promptly pay to
the Executive accrued salary and vacation pay, reimbursement
for expenses incurred through the date of termination in
accordance with Company policy, and accrued benefits through
the Company's benefit plans, programs and arrangements.
(b) Without Cause or for Good Reason, Death or Disability. If the
Executive's employment is terminated (a) by the Company
without Cause, (b) by Executive for Good Reason or (c) by
reason of death or Disability, and the Executive executes a
separation agreement with a release of claims agreeable to
the Company (to the extent that the Executive is physically
and mentally capable to execute such an agreement), the
Executive's salary and other benefits specified in Section 3
shall cease at the time of such termination, and the
Executive shall not be entitled to any compensation specified
in Section 3 which was not required to be paid prior to such
termination; provided, however, the Company shall pay the
Executive the amounts and provide the Executive the benefits
as follows:
(i) The Company shall pay to the Executive as severance,
an amount in cash equal to double the sum of (i) the
Executive's Base Salary, and (ii) the annual Bonus
(if any) earned by the Executive pursuant to any
annual bonus or incentive plan maintained by the
Company in respect of the fiscal year ending
immediately prior to the fiscal year in which the
termination occurs (or, if such termination is by
the Company without Cause and is done so in relation
to the Sale of the Pet Business, the Severance
Amount, if higher), such cash amount to be paid to
the Executive ratably monthly in arrears over the
24-month period immediately following such
termination. Additionally, the Company shall
promptly pay to the Executive in cash following a
termination under this Section 5(b) a pro rata
portion of the target annual Bonus applicable to the
fiscal year in which such termination occurs (based
on the number of weeks worked during such fiscal
year prior to such termination divided by 52)
provided that, at the time of such termination, such
pro rata portion is accrued on the Company's books
and that such accrual reasonably reflects the
probability and extent such bonus would be paid.
Notwithstanding the foregoing, if any payment in
accordance with this paragraph would subject the
Executive to tax under section 409A of the Internal
Revenue Code of 1986, as amended, then payment will
be suspended until the first date as of which
payment can be made without subjecting the Executive
to such tax, at which time a lump sum payment of
suspended payments will be made to Executive.
(ii) For the greater of (i) the 24-month period
immediately following such termination or (ii) the
remainder of the Initial Term, the Company shall
arrange to provide the Executive and his dependents
the additional benefits specified in Section 3(c)
substantially similar to those provided to the
Executive and his dependents by the Company
immediately prior to the date of termination, at no
greater cost to the Executive or the Company than
the cost to the Executive and the Company
immediately prior to such date. Benefits otherwise
receivable by the Executive pursuant to this Section
5(b)(ii) shall cease immediately upon the discovery
by the Company of the Executive's breach of the
covenants contained in Section 6 or 7 hereof. In
addition, benefits otherwise receivable by the
Executive pursuant to this Section 5(b)(ii) shall be
reduced to the extent benefits of the same type are
received by or made available to the Executive
during the 24-month period following the Executive's
termination of employment (and any such benefits
received by or made available to the Executive shall
be reported to the Company by the Executive);
provided, however, that the Company shall reimburse
the Executive for the excess, if any, of the cost of
such benefits to the Executive over such cost
immediately prior to the date of termination.
(iii) The Executive's accrued vacation (determined in
accordance with Company policy) at the time of
termination shall be paid as soon as reasonably
practicable.
(iv) Any payments provided for hereunder shall be paid
net of any applicable withholding required under
federal, state, or local law and any additional
withholding to which the Executive has agreed.
(v) If the Executive's employment with the Company
terminates during the Term, the Executive shall not
be required to seek other employment or to attempt
in any way to reduce any amounts payable to the
Executive by the Company pursuant to this Section 5,
and there shall be no reduction or offset of such
payments following Executive's obtaining any other
employment.
6. Agreement Not to Compete.
(a) The Executive agrees that during the Non-Competition Period
(as defined below), he will not, directly or indirectly, in
any capacity, either separately, jointly or in association
with others, as an officer, director, consultant, agent,
employee, owner, principal, partner or stockholder of any
business, or in any other capacity, provide services of the
same or similar kind or nature that he provides to the
Company to, or have a financial interest in (excepting only
the ownership of not more than 5% of the outstanding
securities of any class listed on an exchange or the Nasdaq
Stock Market), any competitor of the Company (which means any
person or organization that is in the business of or makes
money from designing, developing, or selling products or
services similar to those products and services developed,
designed or sold by the Company); provided, however, that the
Executive may provide services to or have a financial
interest in a business that competes with the Company if his
employment or financial interest is with a separately managed
or operated division or affiliate of such business that does
not compete with the Company. The "Non-Competition Period" is
(a) the longer of the Executive's employment hereunder plus
(b) a period of one (1) year thereafter. In recognition,
acknowledgement and agreement that the Company's business and
operations extend throughout North America and beyond, the
parties agree that the geographic scope of this covenant not
to compete shall extend to North America.
(b) Without limiting the generality of clause (a) above, the
Executive further agrees that during the Non-Competition
Period, he will not, directly or indirectly, in any capacity,
either separately, jointly or in association with others,
solicit or otherwise contact any of the Company's customers
with whom the Executive had contact, responsibility for, or
had acquired confidential information about by virtue of his
or her employment with the Company at any time during his or
her employment, if such contact is for the general purpose of
selling products that satisfy the same general needs as any
products that the Company had available for sale to its
customers during the Non-Competition Period.
(c) The Executive agrees that during the Non-Competition Period,
he shall not initiate contact in order to induce, solicit or
encourage any person to leave the Company's employ. Nothing
in this paragraph is meant to prohibit an employee of the
Company that is not a party to this Agreement from becoming
employed by another organization or person.
(d) If a court determines that the foregoing restrictions are too
broad or otherwise unreasonable under applicable law,
including with respect to time or space, the court is hereby
requested and authorized by the parties hereto to revise the
foregoing restrictions to include the maximum restrictions
allowed under the applicable law.
(e) For purposes of this Section 6 and Section 7, the "Company"
refers to the Company and any incorporated or unincorporated
affiliates of the Company.
7. Secret Processes and Confidential Information.
(a) The Executive agrees to hold in strict confidence and, except
as the Company may authorize or direct, not disclose to any
person or use (except in the performance of his services
hereunder) any confidential information or materials received
by the Executive from the Company and any confidential
information or materials of other parties received by the
Executive in connection with the performance of his duties
hereunder. For purposes of this Section 7(a), confidential
information or materials shall include existing and potential
customer information, existing and potential supplier
information, product information, design and construction
information, pricing and profitability information, financial
information, sales and marketing strategies and techniques
and business ideas or practices. The restriction on the
Executive's use or disclosure of the confidential information
or materials shall remain in force during the Executive's
employment hereunder and until the earlier of (x) a period of
two (2) years thereafter or (y) such information is of
general knowledge in the industry through no fault of the
Executive or any agent of the Executive. The Executive also
agrees to return to the Company promptly upon its request any
Company information or materials in the Executive's
possession or under the Executive's control. This Section
7(a) is not intended to preclude Executive from being
gainfully employed by another. Rather, it is intended to
prohibit Executive from using the Company's confidential
information or materials in any subsequent employment or
employment undertaken that is not for the benefit of the
Company during the identified period.
(b) The Executive will promptly disclose to the Company and to no
other person, firm or entity all inventions, discoveries,
improvements, trade secrets, formulas, techniques, processes,
know-how and similar matters, whether or not patentable and
whether or not reduced to practice, which are conceived or
learned by the Executive during the period of the Executive's
employment with the Company, either alone or with others,
which relate to or result from the actual or anticipated
business or research of the Company or which result, to any
extent, from the Executive's use of the Company's premises or
property (collectively called the "Inventions"). The
Executive acknowledges and agrees that all the Inventions
shall be the sole property of the Company, and the Executive
hereby assigns to the Company all of the Executive's rights
and interests in and to all of the Inventions, it being
acknowledged and agreed by the Executive that all the
Inventions are works made for hire. The Company shall be the
sole owner of all domestic and foreign rights and interests
in the Inventions. The Executive agrees to assist the Company
at the Company's expense to obtain and from time to time
enforce patents and copyrights on the Inventions.
(c) Upon the request of, and, in any event, upon termination of
the Executive's employment with the Company, the Executive
shall promptly deliver to the Company all documents, data,
records, notes, drawings, manuals and all other tangible
information in whatever form which pertains to the Company,
and the Executive will not retain any such information or any
reproduction or excerpt thereof. Nothing in this Agreement of
elsewhere shall prevent the Executive from retaining his desk
calendars, address book and rolodex.
(d) Nothing in this Section 7 diminishes or limits any protection
granted by law to trade secrets or relieves the Executive of
any duty not to disclose, use or misappropriate any
information that is a trade secret for as long as such
information remains a trade secret.
8. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) upon confirmation of receipt when such notice or other
communication is sent by facsimile or telex, (c) one day after
delivery to an overnight delivery courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail. The addresses
for such notices shall be as follows:
(a) For notices and communications to the Company:
Spectrum Brands, Inc.
Six Concourse Parkway
Suite 3300
Atlanta, GA 30328
Facsimile: (770) 829-6298
Attention: James T. Lucke
(b) For notices and communications to the Executive: at the
address set forth in the records of the Company, as updated
at the request of the Executive from time to time.
Any party hereto may, by notice to the other, change its address for
receipt of notices hereunder.
9. General.
(a) Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Wisconsin, without
reference to its conflicts of law principles.
(b) Amendment; Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms
hereof may be waived, only by a written instrument executed
by all of the parties hereto or, in the case of a waiver, by
the party waiving compliance. The failure of any party at any
time or times to require performance of any provision hereof
shall in no manner affect the right at a later time to
enforce the same. No waiver by any party of the breach of any
term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver
of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
(c) Successors and Assigns. This Agreement shall be binding upon
the Executive, without regard to the duration of his
employment by the Company or reasons for the cessation of
such employment, and inure to the benefit of his
administrators, executors, heirs and assigns, although the
obligations of the Executive are personal and may be
performed only by him. This Agreement shall also be binding
upon and inure to the benefit of the Company and its
subsidiaries, successors and assigns, including any
corporation with which or into which the Company or its
successors may be merged or which may succeed to their assets
or business.
(d) Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original but
which together shall constitute one and the same instrument.
(e) Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation during his employment hereunder in any benefit,
bonus, incentive or other plan or program provided by the
Company or any of its affiliates and for which the Executive
may qualify. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or
program of the Company or any affiliated company at or
subsequent to the date of the Executive's termination of
employment with the Company shall, subject to the terms
hereof or any other agreement entered into by the Company and
the Executive on or subsequent to the date hereof, be payable
in accordance with such plan or program.
(f) Mitigation. In no event shall the Executive be obligated to
seek other employment by way of mitigation of the amounts
payable to the Executive under any of the provisions of this
Agreement. In the event that the Executive shall give a
Notice of Termination for Good Reason and it shall thereafter
be determined that Good Reason did not exist, the employment
of the Executive shall, unless the Company and the Executive
shall otherwise mutually agree, be deemed to have terminated,
at the date of giving such purported Notice of Termination,
and the Executive shall be entitled to receive only those
payments and benefits which he would have been entitled to
receive at such date had he terminated his employment
voluntarily at such date under Section 4(d) of this
Agreement.
(g) Equitable Relief. The Executive expressly agrees that breach
of any provision of Sections 6 or 7 of this Agreement would
result in irreparable injuries to the Company, that the
remedy at law for any such breach will be inadequate and that
upon breach of such provisions, the Company, in addition to
all other available remedies, shall be entitled as a matter
of right to injunctive relief in any court of competent
jurisdiction without the necessity of proving the actual
damage to the Company.
(h) Severability. Sections 6(a), 6(b), 6(c), 7(a), 7(b) and 9(h)
of this Agreement shall be considered separate and
independent from the other sections of this Agreement and no
invalidity of any one of those sections shall affect any
other section or provision of this Agreement. However,
because it is expressly acknowledged that the pay and
benefits provided under this Agreement are provided, at least
in part, as consideration for the obligations imposed upon
Executive under Sections 6(a), 6(b), 6(c), 7(a) and 7(b),
should Executive challenge those obligations or any court
determine that any of the provisions under these Sections is
unlawful or unenforceable, such that Executive need not honor
those provisions, then Executive shall not receive the pay
and benefits, provided for in this Agreement following
termination, if otherwise available to Executive,
irrespective of the reason for the end of Executive's
employment.
(j) Entire Agreement. This Agreement and the schedule hereto
constitute the entire understanding of the parties hereto
with respect to the subject matter hereof and supersede all
prior negotiations, discussions, writings and agreements
between them with respect to the subject matter hereof.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SPECTRUM BRANDS, INC.
By: /s/ David A. Jones
--------------------------------
David A. Jones
Chief Executive Officer
EXECUTIVE:
/s/ John A. Heil
- ----------------------
Name: John A. Heil
Exhibit 10.2
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
-----------------------------------------
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of the 16th day of January, 2007, by and between Spectrum
Brands, Inc., a Wisconsin corporation (the "Company") and David R. Lumley (the
"Executive").
WHEREAS, the Company and the Executive wish to amend and restate the
provisions of Executive's December 22, 2005 Employment Agreement with the
Company as the Company desires to employ the Executive upon the terms and
conditions set forth herein; and
WHEREAS, the Executive is willing and able to accept such employment
on such terms and conditions; and
WHEREAS, Executive's continued employment with the Company is
expressly conditioned upon the agreement by the Executive to the terms and
conditions of such employment as contained in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained herein (promises that include benefits to which Executive would not
otherwise be entitled or receive), and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Executive hereby agree as follows:
1. Employment Duties and Acceptance. The Company hereby employs the
Executive, and the Executive agrees to serve and accept employment
with the Company as Co-Chief Operating Officer, reporting directly to
the Chairman & Chief Executive Officer of the Company, with
responsibility for managing the Company's Global Battery and Personal
Care Business (the "Legacy Business") and the Home and Garden
Business. During the Term (as defined below) the Executive shall
devote substantially all of his working time and efforts to such
employment.
2. Term of Employment. Subject to termination of employment under Section
4 hereof, the Executive's employment and appointment hereunder shall
be for a term commencing on the date hereof and expiring on September
30, 2010 (the "Initial Term"). Upon expiration of the Initial Term and
subject to termination of employment under Section 4 hereof, this
Agreement shall automatically extend for successive renewal periods of
one (1) year ("Renewal Term(s)"). The Initial Term and any Renewal
Terms shall be collectively referred to as the "Term".
3. Compensation. So long as Executive's employment has not been
terminated pursuant to Section 4 hereof, in consideration of the
performance by the Executive of his duties hereunder, the Company
shall pay or provide to the Executive the following compensation and
such other compensation as the Board may determine which the Executive
agrees to accept in full satisfaction for his services, it being
understood that necessary withholding taxes, FICA contributions and
the like shall be deducted from such compensation:
(a) Base Salary. The Executive shall receive a base salary of
Five Hundred Twenty Five Thousand Dollars ($525,000) per
annum effective January 10, 2007 for the duration of the Term
("Base Salary"), which Base Salary shall be paid in equal
semi-monthly installments each year, to be paid semi-monthly
in arrears. The Board of Directors of the Company (the
"Board") will review from time to time the Base Salary
payable to the Executive hereunder and may, in its
discretion, increase the Executive's Base Salary. Any such
increased Base Salary shall be and become the "Base Salary"
for purposes of this Agreement.
(b) Bonus. The Executive shall receive a bonus for each fiscal
year ending during the Term, payable annually in arrears,
which shall be based on a target of One Hundred percent
(100%) of Base Salary paid during such fiscal year, provided
the Company achieves certain annual performance goals
established by the Board from time to time (the "Bonus"). The
Board may, in its discretion, increase the annual Bonus. Any
such increased annual Bonus shall be and become the "Bonus"
for such fiscal year for purposes of this Agreement.
(c) Insurance Coverages. The Executive shall be entitled to such
insurance and all other benefits as are generally made
available from time to time by the Company to its executive
officers who report to the Chief Executive Officer.
(d) Existing Stock-Based Awards. All restricted stock awards
previously granted to the Executive shall remain in full
force and effect in accordance with their terms.
(e) New Restricted Stock Award. The Company shall grant the
Executive restricted shares of the Company's common stock as
follows. On February 1, 2007, Executive shall be awarded
50,000 shares of the Company's common stock, shares that will
include restrictions prohibiting the sale, transfer, pledge,
assignment or other encumbrance of such stock ("Restricted
Shares"), provided, however, that all such restrictions shall
lapse on January 10, 2010. Notwithstanding anything else set
forth above, (i) restrictions on Restricted Shares shall also
lapse on the earlier of a change in control of the Company
(as defined in the company's stock plan governing such award)
("Change in Control") or the sale by the Company of all or
substantially all of the assets of the Legacy Business ("Sale
of the Legacy Business"), and (ii) any unlapsed shares of
Restricted Stock shall be forfeited to the Company in the
event the Executive's employment with the Company terminates
prior to the earlier of a Change in Control or the Sale of
the Legacy Business for any reason other than a termination
of Executive's employment by the Company without Cause by
Executive for Good Reason or upon death or Disability
hereunder. Additional terms and conditions of such restricted
stock award shall be set forth in an agreement with such
terms and conditions being substantially similar (other than
as set forth above) to the terms and conditions of the
previous restricted stock award granted to Executive on
October 2, 2006.
(f) Long-Term Incentive Award. Subject to Board approval,
Executive shall be eligible to receive each fiscal year
during the Term (commencing with fiscal year 2008) a
Company-stock based award or other consideration valued at
150% of Executive's Base Salary at the time of the award, and
with such award containing certain vesting conditions to be
based on achievement of Company's performance objectives
established by the Board from time to time. In the event such
award provides for accelerated vesting upon Change in
Control, such accelerated vesting shall also apply upon a
Sale of the Legacy Business.
(g) Vacation. The Executive shall be entitled to four (4) weeks
vacation each year.
(h) Other Expenses. The Executive shall be entitled to
reimbursement of all reasonable and documented expenses
actually incurred or paid by the Executive in the performance
of the Executive's duties under this Agreement, upon
presentation of expense statements, vouchers or other
supporting information in accordance with Company policy. All
expense reimbursements and other perquisites of the Executive
are reviewable periodically by the Compensation Committee of
the Board.
(i) Vehicle. Pursuant to the Company's policy for use of vehicles
by executives, Executive shall be provided the use of a
leased vehicle. Unless the Executive's employment is
terminated by the Company for Cause or by the Executive
pursuant to Section 4(d), Executive shall be permitted to
drive his Company vehicle for the duration of the 12-month
period following termination; at the end of such 12-month
period, Executive will be permitted to purchase his Company
vehicle at book value as of such date.
(j) D&O Insurance. The Executive shall be entitled to
indemnification from the Company to the maximum extent
provided by law, but not for any action, suit, arbitration or
other proceeding (or portion thereof) initiated by the
Executive, unless authorized or ratified by the Board. Such
indemnification shall be covered by the terms of the
Company's policy of insurance for directors and officers in
effect from time to time (the "D&O Insurance"). Copies of the
Company's charter, by-laws and D&O Insurance will be made
available to the Executive upon request.
(k) Legal Fees. The Company shall pay the Executive's actual and
reasonable legal fees incurred in connection with the
preparation of this Agreement.
4. Termination.
(a) Termination by the Company with Cause. The Company shall have
the right at any time to terminate the Executive's employment
hereunder upon written notice upon the occurrence of any of
the following (any such termination being referred to as
termination for "Cause"):
(i) the commission by the Executive of any deliberate
and premeditated act taken by the Executive in bad
faith against the interests of the Company;
(ii) the Executive has been convicted of, or pleads nolo
contendere with respect to any felony, or of any
lesser crime or offense having as its predicate
element fraud, dishonesty or misappropriation of the
property of the Company;
(iii) the habitual drug addiction or intoxication of the
Executive which negatively impacts his job
performance or the Executive's failure of a
company-required drug test;
(iv) the willful failure or refusal of the Executive to
perform his duties as set forth herein or the
willful failure or refusal to follow the direction
of the CEO, provided such failure or refusal
continues after thirty (30) days of the receipt of
notice in writing from the Board of such failure or
refusal, which notice refers to this Section 4(a)
and indicates the Company's intention to terminate
the Executive's employment hereunder if such failure
or refusal is not remedied within such thirty (30)
day period; or
(v) the Executive materially breaches any of the terms
of this Agreement or any other agreement between the
Executive and the Company which breach is not cured
within thirty (30) days subsequent to notice from
the company to the Executive of such breach, which
notice refers to this Section 4(a) and indicates the
Company's intention to terminate the Executive's
employment hereunder if such breach is not cured
within such thirty (30) day period.
If such definition of termination for "Cause" set
forth above conflicts with such definition in the
Executive's time based or performance based stock
option or restricted stock agreements (collectively,
the "Stock Agreements"), or any agreements referred
to therein, the definition set forth herein shall
control.
(b) Termination by Company for Death or Disability. The Company
shall have the right at any time to terminate the Executive's
employment hereunder upon thirty (30) days prior written
notice upon the Executive's inability to perform his duties
hereunder by reason of any mental, physical or other
Disability for a period of at least six (6) consecutive
months (for purposes hereof, "disability" has the same
meaning as in the Company's disability policy), if within 30
days after such notice of termination is given, the Executive
shall not have returned to the full-time performance of his
duties. The Company's obligations hereunder shall, subject to
the provisions of Section 5(b), also terminate upon the death
of the Executive.
(c) Termination by Company without Cause. The Company shall have
the right at any time to terminate the Executive's employment
for any other reason without Cause upon sixty (60) days prior
written notice to the Executive. Any failure of the Company
to renew the Term of this Agreement shall be deemed a
termination by the Company without Cause as of the expiration
of the Term for all purposes of this Agreement.
(d) Voluntary Termination by Executive. The Executive shall be
entitled to voluntarily terminate his employment (without
Good Reason) hereunder upon sixty (60) days prior written
notice to the Company. Any such termination shall be treated
as a termination by the Company for "Cause" under Section 5.
(e) Termination by the Executive for Good Reason. The Executive
shall be entitled to terminate his employment and appointment
hereunder, without prior notice, upon the occurrence of a
Good Reason. Any such termination shall be treated as a
termination by the Company without Cause. For this purpose, a
"Good Reason" shall mean:
(i) any reduction, not consented to by Executive, in
Executive's Base Salary or target annual bonus
opportunity then in effect;
(ii) the relocation, not consented to by Executive, of
the Company's office at which Executive is
principally employed as of the date hereof to a
location more than seventy-five (75) miles from such
office, or the requirement by the Company that
Executive be based at an office other than the
Company's office at such location on an extended
basis, except for required travel on the Company's
business to an extent substantially consistent with
Executive's business travel obligations;
(iii) a substantial diminution or other substantive
adverse change, not consented to by Executive, in
the nature or scope of Executive's responsibilities,
authorities, powers, functions or duties;
(iv) a breach by the Company of any of its other material
obligations under this Agreement and the failure of
the Company to cure such breach within thirty (30)
days after written notice thereof by Executive; or
(v) a Sale of the Legacy Business to a third party
unaffiliated with the Company, provided, however,
(a) that Executive shall only have the right to
terminate his employment for Good Reason under this
Section 4(e)(v) by providing notice to the Company
to this effect during the sixty (60) day period
preceding the one (1) year anniversary of the
closing of the Sale of the Legacy Business with such
termination of employment to be effective on the one
(1) year anniversary date of such closing and (b)
that as a further condition Executive shall have
remained employed by the acquirer of the Legacy
Business during the full one (1) year period
following such closing date. Notwithstanding
anything else in this Agreement to the contrary, and
provided that Executive remain employed by such
acquirer of the Legacy Business for the full one (1)
year following such closing, the Executive's annual
Bonus payment applicable to such one (1) year period
shall equal at least 100% of the target amount.
Further in this regard, should Executive's
employment in connection with the Legacy Business
not be terminated prior to or at the closing of the
Sale of the Legacy Business or should Executive's
employment be terminated by the Company without
Cause in relation to the Sale of the Legacy
Business, the Company shall deposit on such closing
date an amount equal to double the sum of (i)
Executive's Base Salary and (ii) the target Bonus
amount Executive would be eligible to receive if the
Company met 100% of the applicable performance goals
established by the Board or, if higher, the amount
determined pursuant to Section 3(b) for the fiscal
year ending immediately prior to the closing of the
Sale of the Legacy Business ("Severance Amount")
into a reasonable and customary escrow account to
secure Executive's potential severance benefits
under this Section. Should Executive (a) be
terminated with Cause or should he voluntarily
terminate his employment with the acquirer before
the expiration of the one year period following the
closing of the Sale of the Legacy Business or (b)
not elect to terminate his employment for Good
Reason within the sixty (60) day notice period set
forth above, the full escrow amount shall be
returned to the Company and the Company shall have
no further obligation in this regard.
Notwithstanding anything else in this Agreement to
the contrary, should Executive's employment be
terminated without Cause or by reason of Death or
Disability following the Closing Date but before the
first anniversary of the closing date of the Sale of
the Legacy Business or upon his proper election to
terminate his employment for Good Reason as
permitted hereunder, the escrow agent shall pay out
the Severance Amount to the Executive over
twenty-four (24) months as described in Section
5(b)(i) commencing on Executive's termination, and
Company shall have no other severance obligations
under Section 5(b)(i) in this regard. Any and all
interest on sums held in escrow shall be paid to
Company.
Notwithstanding the foregoing, if required to comply
with section 409A of the Internal Revenue Code of
1986, as amended, and any Treasury regulations or
other guidance promulgated thereunder, the Executive
will receive the first six (6) months of monthly
installment payments required under this Section
5(b)(i) on the six-month anniversary of the date of
the Executive's termination of employment in a
lump-sum payment, and the remaining payments
required to be made hereunder shall thereafter be
paid in equal consecutive monthly installments for
the remainder of such 24 month period.
For purposes of any stock option agreements or restricted
stock award agreements, termination for Good Reason shall be
treated as a termination of employment by the Company without
"Cause."
(f) Notice of Termination. Any termination (except due to death
of the Executive) shall be communicated by Notice of
Termination to the other party hereto given in accordance
with Section 8. For purposes of this Agreement, a "Notice of
Termination" means a written notice given prior to the
termination which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment
under the provision so indicated and (iii) if the termination
date is other than the date of receipt of such notice,
specifies the termination date of this Agreement (which date
shall be not more than fifteen (15) days after the giving of
such notice, unless a longer notice is required pursuant to
another section of this Agreement). The failure by the
Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause shall
not waive any right of the Company hereunder or preclude the
Company from asserting such fact or circumstance in enforcing
its rights hereunder.
5. Effect of Termination of Employment.
(a) Termination by the Company with Cause or Voluntarily by the
Executive. If the Executive's employment hereunder is
terminated by the Company with Cause or if the Executive
voluntarily terminates his employment hereunder (except for
Good Reason), the Executive's salary and other benefits
specified in Section 3 shall cease at the time of such
termination, and the Executive shall not be entitled to any
compensation specified in Section 3 which was not required to
be paid prior to such termination; provided, however, that
the Executive shall be entitled to continue to participate in
the Company's medical benefit plans to the extent required by
law. Upon any termination of employment, the Company shall
promptly pay to the Executive accrued salary and vacation
pay, reimbursement for expenses incurred through the date of
termination in accordance with Company policy, and accrued
benefits through the Company's benefit plans, programs and
arrangements.
(b) Without Cause or for Good Reason, Death or Disability. If the
Executive's employment hereunder is (a) terminated by the
Company without Cause, (b) by Executive for Good Reason or
(c) by reason of death or Disability, and the Executive
executes a separation agreement with a release of claims
agreeable to the Company (to the extent that the Executive is
physically and mentally capable to execute such an
agreement), the Executive's salary and other benefits
specified in Section 3 shall cease at the time of such
termination, and the Executive shall not be entitled to any
compensation specified in Section 3 which was not required to
be paid prior to such termination; provided, however the
Company shall pay the Executive the amounts and provide the
Executive the benefits as follows:
(i) The Company shall pay to the Executive as severance,
an amount in cash equal to double the sum of (i) the
Executive's Base Salary, and (ii) the annual Bonus
(if any) earned by the Executive pursuant to any
annual bonus or incentive plan maintained by the
Company in respect of the fiscal year ending
immediately prior to the fiscal year in which the
termination occurs (or if such termination is by the
Company without Cause and is done so in relation to
a Sale of the Legacy Business, the Severance Amount,
if higher), such cash amount to be paid to the
Executive ratably monthly in arrears over the
24-month period immediately following such
termination. Additionally, the Company shall
promptly pay to the Executive in cash following a
termination under this Section 5(b) a pro rata
portion of the target annual Bonus applicable to the
fiscal year in which termination occurs (based on
the number of weeks worked during such fiscal year
prior to such termination divided by 52) provided
that, at the time of such termination, such pro rata
portion is accrued on the Company's books and that
such accrual reasonably reflects the probability and
extent such bonus would be paid.
Notwithstanding the foregoing, if required to comply
with section 409A of the Internal Revenue Code of
1986, as amended, and any Treasury regulations or
other guidance promulgated thereunder, the Executive
will receive the first six (6) months of monthly
installment payments required under this Section
5(b)(i) on the six-month anniversary of the date of
the Executive's termination of employment in a
lump-sum payment, and the remaining payments
required to be made hereunder shall thereafter be
paid in equal consecutive monthly installments for
the remainder of such 24 month period.
(ii) For the greater of (i) the 24-month period
immediately following such termination or (ii) the
remainder of the Initial Term, the Company shall
arrange to provide the Executive and his dependents
the additional benefits specified in Section 3(c)
substantially similar to those provided to the
Executive and his dependents by the Company
immediately prior to the date of termination, at no
greater cost to the Executive or the Company than
the cost to the Executive and the Company
immediately prior to such date. Benefits otherwise
receivable by the Executive pursuant to this Section
5(b)(ii) shall cease immediately upon the discovery
by the Company of the Executive's breach of the
covenants contained in Section 6 or 7 hereof. In
addition, benefits otherwise receivable by the
Executive pursuant to this Section 5(b)(ii) shall be
reduced to the extent benefits of the same type are
received by or made available to the Executive
during the 24-month period following the Executive's
termination of employment (and any such benefits
received by or made available to the Executive shall
be reported to the Company by the Executive);
provided, however, that the Company shall reimburse
the Executive for the excess, if any, of the cost of
such benefits to the Executive over such cost
immediately prior to the date of termination.
(iii) The Executive's accrued vacation (determined in
accordance with Company policy) at the time of
termination shall be paid as soon as reasonably
practicable.
(iv) Any payments provided for hereunder shall be paid
net of any applicable withholding required under
federal, state, or local law and any additional
withholding to which the Executive has agreed.
(v) If the Executive's employment with the Company
terminates during the Term, the Executive shall not
be required to seek other employment or to attempt
in any way to reduce any amounts payable to the
Executive by the Company pursuant to this Section 5,
and there shall be no reduction or offset of such
payments following Executive's obtaining other
employment.
6. Agreement Not to Compete.
(a) The Executive agrees that during the during his employment
and for the one-year period immediately following the
termination of his employment for any reason (hereafter, the
"Non-Competition Period"), he will not, directly or
indirectly, either separately, jointly or in association with
others, as an officer, director, consultant, agent, employee,
owner, principal, partner or stockholder of any business,
provide services of the same or similar kind or nature that
he provides to the Company to, or have a financial interest
in (excepting only the ownership of not more than 5% of the
outstanding securities of any class listed on an exchange or
the Nasdaq Stock Market), any competitor of the Company
(which means any person or organization that is in the
business of or makes money from designing, developing, or
selling products or services similar to those products and
services developed, designed or sold by the Company);
provided, however, that the Executive may provide services to
or have a financial interest in a business that competes with
the Company if his employment or financial interest is with a
separately managed or operated division or affiliate of such
business that does not compete with the Company. The
Executive recognizes, acknowledges and agrees that his duties
and responsibilities hereunder will be performed throughout
the United States and Canada and will result in Executive's
having material contact with the Company's customers,
suppliers, vendors, and employees throughout the United
States and Canada. Accordingly, the Parties acknowledge and
agree that the restrictions set forth in this Section 6(a)
shall extend to the United States and Canada (hereafter, the
"Restricted Territory") and that this geographic scope is
reasonable based on the geographic scope of Executive's
duties and responsibilities.
(b) Without limiting the generality of clause (a) above, the
Executive further agrees that, during the Non-Competition
Period, he will not, within the Restricted Territory,
directly or indirectly, either separately, jointly or in
association with others, solicit, divert, take away, or
attempt to solicit, divert, or take away, any customer or
person to whom the Company has sent a written sales or
servicing proposal or contract in connection with the
business of the Company within the immediately preceding
two-year period (hereafter, a "Prospective Customer"), for
the purpose of or with the intention of selling or providing
to such customer or Prospective Customer any product or
service similar to any product or service sold, provided,
offered, or under development by the Company during the
two-year period immediately preceding the termination of
Executive's employment for any reason (or during the
preceding two years if during Executive's employment);
provided, however, that this restriction shall only apply to
customers or Prospective Customers of the Company with whom
Executive had contact or about whom the Executive acquired
confidential information by virtue of his employment with the
Company at any time during such two-year period.
(c) The Executive agrees that during the Non-Competition Period,
he shall not initiate contact in order to induce, solicit or
encourage any person to leave the Company's employ. Nothing
in this paragraph is meant to prohibit an employee of the
Company that is not a party to this Agreement from becoming
employed by another organization or person.
(d) If a court determines that the foregoing restrictions are too
broad or otherwise unreasonable under applicable law,
including with respect to time or space, the court is hereby
requested and authorized by the parties hereto to revise the
foregoing restrictions to include the maximum restrictions
allowed under the applicable law. Sections 6(a), 6(b), and
6(c) each are intended to be considered and construed as
separate and independent covenants; any ruling that any one
or more of these sections is overbroad or otherwise invalid
shall not affect the validity of any of the other sections or
any other section of this Agreement.
(e) For purposes of this Section 6 and Section 7, the "Company"
refers to the Company and any incorporated or unincorporated
affiliates of the Company.
7. Secret Processes and Confidential Information.
(a) The Executive agrees to hold in strict confidence and, except
as the Company may authorize or direct, not disclose to any
person or use (except in the performance of his services
hereunder) any confidential information or materials received
by the Executive from the Company and any confidential
information or materials of other parties received by the
Executive in connection with the performance of his duties
hereunder. For purposes of this Section 7(a), confidential
information or materials shall include, but are not limited
to, existing and potential customer information, existing and
potential supplier information, product information, design
and construction information, pricing and profitability
information, financial information, sales and marketing
strategies and techniques and business ideas or practices
(hereafter "Confidential Information"). The restriction on
the Executive's use or disclosure of Confidential Information
shall remain in force during the Executive's employment
hereunder and until the earlier of (x) the expiration of a
period of two (2) years thereafter or (y) such time as the
Confidential Information is of general knowledge in the
industry through no fault of the Executive or any agent of
the Executive. The Executive also agrees to return to the
Company promptly upon its request any Company information or
materials in the Executive's possession or under the
Executive's control. This Section 7(a) is not intended to
preclude Executive from being gainfully employed by another.
Rather, it is intended to prohibit Executive from using the
Company's confidential information or materials in any
subsequent employment or employment undertaken that is not
for the benefit of the Company during the identified period.
(b) The Executive will promptly disclose to the Company and to no
other person, firm or entity all inventions, discoveries,
improvements, trade secrets, formulas, techniques, processes,
know-how and similar matters, whether or not patentable and
whether or not reduced to practice, which are conceived or
learned by the Executive during the period of the Executive's
employment with the Company, either alone or with others,
which relate to or result from the actual or anticipated
business or research of the Company or which result, to any
extent, from the Executive's use of the Company's premises or
property (collectively called the "Inventions"). The
Executive acknowledges and agrees that all the Inventions
shall be the sole property of the Company, and the Executive
hereby assigns to the Company all of the Executive's rights
and interests in and to all of the Inventions, it being
acknowledged and agreed by the Executive that all the
Inventions are works made for hire. The Company shall be the
sole owner of all domestic and foreign rights and interests
in the Inventions. The Executive agrees to assist the Company
at the Company's expense to obtain and from time to time
enforce patents and copyrights on the Inventions.
(c) Upon the request of, and, in any event, upon termination of
the Executive's employment with the Company, the Executive
shall promptly deliver to the Company all documents, data,
records, notes, drawings, manuals and all other tangible
information in whatever form which pertains to the Company,
and the Executive will not retain any such information or any
reproduction or excerpt thereof. Nothing in this Agreement or
elsewhere shall prevent the Executive from retaining his desk
calendars, address book and rolodex.
(d) Nothing in this Section 7 diminishes or limits any protection
granted by law to trade secrets or relieves the Executive of
any duty not to disclose, use or misappropriate any
information that is a trade secret for as long as such
information remains a trade secret.
8. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) upon confirmation of receipt when such notice or other
communication is sent by facsimile or telex, (c) one day after
delivery to an overnight delivery courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail. The addresses
for such notices shall be as follows:
(a) For notices and communications to the Company:
Spectrum Brands, Inc.
Six Concourse Parkway
Suite 3300
Atlanta, GA 30328
Facsimile: (770) 829-6298
Attention: James T. Lucke
(b) For notices and communications to the Executive: at the
address set forth in the records of the Company, as updated
at the request of the Executive from time to time.
Any party hereto may, by notice to the other, change its address for
receipt of notices hereunder.
9. General.
(a) Governing Law. This Agreement shall be construed under and
governed by the laws of the State of Wisconsin, without
reference to its conflicts of law principles.
(b) Amendment; Waiver. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms
hereof may be waived, only by a written instrument executed
by all of the parties hereto or, in the case of a waiver, by
the party waiving compliance. The failure of any party at any
time or times to require performance of any provision hereof
shall in no manner affect the right at a later time to
enforce the same. No waiver by any party of the breach of any
term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver
of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
(c) Successors and Assigns. This Agreement shall be binding upon
the Executive, without regard to the duration of his
employment by the Company or reasons for the cessation of
such employment, and inure to the benefit of his
administrators, executors, heirs and assigns, although the
obligations of the Executive are personal and may be
performed only by him. This Agreement shall also be binding
upon and inure to the benefit of the Company and its
subsidiaries, successors and assigns, including any
corporation with which or into which the Company or its
successors may be merged or which may succeed to their assets
or business.
(d) Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original but
which together shall constitute one and the same instrument.
(e) Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future
participation during his employment hereunder in any benefit,
bonus, incentive or other plan or program provided by the
Company or any of its affiliates and for which the Executive
may qualify. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or
program of the Company or any affiliated company at or
subsequent to the date of the Executive's termination of
employment with the Company shall, subject to the terms
hereof or any other agreement entered into by the Company and
the Executive on or subsequent to the date hereof, be payable
in accordance with such plan or program.
(f) Mitigation. In no event shall the Executive be obligated to
seek other employment by way of mitigation of the amounts
payable to the Executive under any of the provisions of this
Agreement.
(g) Equitable Relief. The Executive expressly agrees that breach
of any provision of Sections 6 or 7 of this Agreement would
result in irreparable injuries to the Company, that the
remedy at law for any such breach will be inadequate and that
upon breach of such provisions, the Company, in addition to
all other available remedies, shall be entitled as a matter
of right to injunctive relief in any court of competent
jurisdiction without the necessity of proving the actual
damage to the Company.
(h) Severability. Sections 6(a), 6(b), 6(c), 7(a), 7(b) and 9(h)
of this Agreement shall be considered separate and
independent from each other and from the other sections of
this Agreement and no invalidity of any one of those sections
shall affect any other section or provision of this
Agreement. However, because it is expressly acknowledged that
the pay and benefits provided under this Agreement are
provided, at least in part, as consideration for the
obligations imposed upon Executive under Sections 6(a), 6(b),
6(c), 7(a) and 7(b), should Executive challenge those
obligations or any court determine that any of the provisions
under these Sections is unlawful or unenforceable, such that
Executive need not honor those provisions, then Executive
shall not receive the pay and benefits, provided for in this
Agreement following termination, if otherwise available to
Executive, irrespective of the reason for the end of
Executive's employment.
(i) Entire Agreement. This Agreement and the schedule hereto
constitute the entire understanding of the parties hereto
with respect to the subject matter hereof and supersede all
prior negotiations, discussions, writings and agreements
between them with respect to the subject matter hereof.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Spectrum Brands, Inc.
By: /s/ David A. Jones
------------------------------
David A. Jones
Chief Executive Officer
EXECUTIVE:
/s/ David R. Lumley
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Name: David R. Lumley