NEGOTIATED EMPLOYMENT AGREEMENT AND GENERAL RELEASE
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This Negotiated Employment Agreement and General Release (referred to as
"Negotiated Employment Agreement") is entered into this ____ day of
________________, 2002, by and between Xxxxx X. Xxxx, (referred to as "XX.
XXXX") and Eveready Battery Company, Inc. (referred to as "COMPANY") and
Energizer Holdings, Inc.
WHEREAS, XX. XXXX is an employee of the COMPANY in a key leadership and
strategic position; and
WHEREAS Energizer Holdings, Inc. is the sole shareholder of COMPANY; and
WHEREAS, COMPANY has decided to make management changes in response to
business developments, but would benefit from XX. XXXX'x assistance in
transitioning to these changes; and
WHEREAS, XX. XXXX and COMPANY are amicably limiting and concluding their
employment relationship and wish to enter into this Negotiated Employment
Agreement; and
WHEREAS the Board of Directors of COMPANY have approved the terms of this
Negotiated Employment Agreement,
NOW THEREFORE, in consideration of the mutual promises contained in this
Negotiated Employment Agreement, the parties agree as follows:
1. Employment Terms, subject to Paragraphs 4 and 5 below:
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a. XX. XXXX shall execute a written resignation from his position as
an officer of Energizer Holdings, Inc. and also as an officer and/or director of
Eveready Battery Company, Inc. and any applicable affiliates or subsidiaries of
Energizer Holdings, Inc. effective upon execution of this Agreement. This
resignation letter shall be in line with COMPANY's specifications as set out in
Attachment A to this Negotiated Employment Agreement and submitted to the Chief
Executive Officer of COMPANY upon execution of this Negotiated Employment
Agreement.
b. Upon the effective date of the resignation set out in Paragraph 1(a)
above, through March 31, 2004, XX. XXXX will be employed by COMPANY in the
position of Director of Strategic Planning for Eveready Battery Company, Inc.
XX. XXXX will be paid the base monthly salary he earned as of March 1, 2002,
while he is on the COMPANY's payroll. XX. XXXX will assist in the transition of
his former duties and perform such other duties or special projects that are
specifically requested by the Chief Executive Officer of the Company or his
designee.
c. XX. XXXX agrees satisfactorily to perform his duties as assigned without
disruption to COMPANY operations or injury to COMPANY's business operations or
reputation.
d. XX. XXXX will receive a bonus payment of three hundred two thousand four
hundred dollars ($302,400), less legally required deductions, for Fiscal Year
2002 and in settlement for any bonus payments due for Fiscal Year 2001. XX. XXXX
will not be eligible for or receive a bonus payment for Fiscal Year 2003 or
Fiscal Year 2004. XX. XXXX'x previous election to defer bonus payments into the
Deferred Compensation Plan will continue to apply and such deferrals will be
subject to Plan terms.
e. The terms of the Amended Change of Control Employment Agreement entered
into by COMPANY with XX. XXXX on November 19, 2001, hereby are voided and shall
have no further force or effect on either XX. XXXX or COMPANY upon execution of
this Negotiated Employment Agreement.
f. Effective October 1, 2002, or mutually agreed other date, XX. XXXX need
report to COMPANY's St. Louis offices to work only as specifically requested by
the Chief Executive Officer of COMPANY in order to perform such other duties or
special projects that are assigned by the Chief Executive Officer of the Company
or his designee, if the Chief Executive Officer of COMPANY determines that XX.
XXXX'x physical presence would be necessary or beneficial for such work
g. Effective March 31, 2004, XX. XXXX'x employment will be terminated, he
will be removed from the active payroll. For the purposes of COMPANY's benefit
plans in which XX. XXXX participates at that time and other executive benefits,
including but not limited to incentive stock option agreements, this termination
will be deemed to be involuntary but not for cause.
h. Benefit Plan Participation.
i. While he is on COMPANY's payroll, XX. XXXX shall continue to be
able to participate in the benefit plans in which he is participating as of
March 1, 2002. It is understood and agreed that nothing in this paragraph
shall be construed to prevent Energizer Holdings, Inc. or COMPANY from
terminating, modifying or reducing any of the benefit plans or incentive
programs offered to employees of COMPANY during the course of this
Negotiated Employment Agreement, as long as such action is not directed
solely at XX. XXXX.
ii. Pursuant to the terms of Paragraph 7b of the Split Dollar
Agreement and Split Dollar Life Insurance Policy (Policy No. I20000087
issued by Security Equity Life Insurance Company, as amended) by and among
Eveready Battery Company, Inc., Xxxxxx X. Xxxx, Trustee of the Rose Family
Irrevocable Trust U/I/T dated April 25, 1997, and XX. XXXX, COMPANY hereby
elects not to terminate said Split Dollar Agreement upon XX. XXXX'x removal
from the payroll on March 31, 2004 or earlier date. COMPANY acknowledges
that its obligations set forth in Paragraph 4 of said Split Dollar
Agreement shall continue until such removal from the payroll, including its
obligation to pay premiums with respect to the Split Dollar Policy, as set
forth in the Premium Schedule. In addition, COMPANY covenants to pay
premiums with respect to the Policy, in accordance with the Premium
Schedule, following XX. XXXX'x removal from COMPANY's payroll. Such
continuation of payment by COMPANY, however, shall not be deemed to be a
waiver or release of its rights under the Collateral Assignment and
Paragraph 8 of the Split Dollar Agreement, and COMPANY shall be entitled to
receive the Corporation's Premium Payment (as defined in the Split Dollar
Agreement) upon the occurrence of any of the Events of Termination
described in Paragraph 7a of the Split Dollar Agreement, other than those
described in subsections (2) or (3) thereof. The parties understand and
agree that COMPANY also shall retain the right to receive the Corporation's
Premium Payment (as defined in the Split Dollar Agreement) at the beginning
of the ninth year of the Policy anniversary as set out in the Premium
Schedule.
iii. COMPANY agrees that, upon reaching age 55, XX. XXXX shall be
eligible for retiree benefits under COMPANY's Executive Life and Health
Plans, to the extent that such programs are offered at that time. XX. XXXX
also will be deemed eligible for retiree medical coverage under the
Energizer Medical Plan including eligibility, or ineligibility, for any
Company-paid subsidy of premium payments in accordance with his Company
service date, when he reaches age 55, without regard to his years of
service with the Company.
iv. XX. XXXX is not entitled to and will not receive any other
payments, including, but not limited to, severance, incentive or
termination payments, from COMPANY or its affiliates or subsidiaries and
will be deemed ineligible to participate in any such programs except as
specifically identified in this Agreement.
i. COMPANY will provide XX. XXXX with executive level Outplacement Service
at no cost to XX. XXXX, if requested by XX. XXXX. The terms of such outplacement
services, beginning availability date, and length of time available shall be
determined by COMPANY in its sole discretion.
j. Within two weeks after his removal from COMPANY's payroll, XX. XXXX will
be paid for any unused, banked, or carryover paid time off (PTO) days, in
accordance with Eveready policy in effect at the time. XX. XXXX will not earn or
be entitled to any paid time off otherwise allocated on January 1, 2003, for
time on the payroll in 2002, or on January 1, 2004, for time on the payroll in
2003.
2. Deferred Compensation, Stock Awards, Restricted Stock Equivalent
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Award:
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a. The terms of Energizer Holdings, Inc.'s Deferred Compensation Plan will
apply to XX. XXXX'x while he is on COMPANY's payroll and upon his termination of
employment in 2004, or earlier date pursuant to Paragraphs 4 or 5 below, in
accordance with that status as of his payroll removal date. It is understood
that nothing in this paragraph shall be construed to prevent COMPANY from
terminating, modifying or reducing the terms of its Deferred Compensation Plan
during the course of this Negotiated Employment Agreement, as long as such
action is not directed solely at XX. XXXX.
b. XX. XXXX previously was granted certain non-qualified stock options
by Energizer Holdings, Inc. The terms of those stock option agreements will
continue to apply, in accordance with XX. XXXX'x status as of his payroll
removal date.
c. Energizer Holdings, Inc. and XX. XXXX mutually executed a Restricted
Stock Equivalent Award Agreement on May 8, 2000. Under the terms of this
Restricted Stock Equivalent Award Agreement, stock equivalents credited to XX.
XXXX shall convert to shares of Energizer Common Stock and be issued to XX. XXXX
on August 22, 2003, provided that XX. XXXX is on COMPANY's payroll as of that
date. Notwithstanding the terms of that Restricted Stock Equivalent Agreement,
if XX. XXXX is removed from COMPANY's payroll prior to August 22, 2003, then the
equivalents will convert to shares of Energizer Common Stock and be issued to
XX. XXXX on the date that he is so removed. All other terms of the Restricted
Stock Equivalent Awards shall continue to apply as drafted.
3. Pension Benefit:
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XX. XXXX'x retirement benefits under the Energizer Holdings, Inc.
Retirement Plan and the Supplemental Retirement Plan, or any successor plans,
will be calculated in accordance with the terms of each plan taking into account
all relevant terms of such plans including, but not limited to, reduction
factors for early retirement and social security offsets. It is understood that
nothing in this paragraph shall be construed to prevent COMPANY or its
affiliates and subsidiaries from reducing the rate of future accruals or
terminating or modifying the terms of such retirement plans or successor plans,
as long as such action is not directed solely at XX. XXXX.
4. XX. XXXX and COMPANY understand and agree that, if XX. XXXX resigns
or obtains and begins employment with another company prior to March 1, 2004,
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COMPANY will terminate XX. XXXX immediately by removing XX. XXXX from COMPANY's
payroll. Upon termination, XX. XXXX'x benefits as an active employee will
cease. Any remaining salary continuation through March 31, 2004, and bonus
payment provided for in Paragraph 1(d), will be paid to XX. XXXX in a lump sum,
less legally required deductions, within two weeks of XX. XXXX'x last day on the
payroll. Part-time employment or self-employment or occasional consultation
shall not constitute beginning employment under this Paragraph, subject to the
confidentiality and non-competition obligations set out in Paragraphs 6(e), 7, 9
and 10 below.
5. XX. XXXX and COMPANY understand and agree that, if XX. XXXX obtains
and begins employment within COMPANY or any of its affiliates or subsidiaries
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prior to March 31, 2004 in another position, this Negotiated Employment
Agreement will become null and void and, unless a new employment contract is
executed in writing. In such event, COMPANY no longer will be obligated in any
way to provide employment XX. XXXX on its payroll for any specific amount of
time in the future or to pay the bonus payments set out in Paragraph 1(d) or any
bonus payment.
6. Obligation of XX. XXXX:
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a. XX. XXXX shall notify COMPANY within two business days of being
offered and accepting another full-time position, if XX. XXXX accepts a position
to commence before March 31, 2004;
b. XX. XXXX waives all claims to future employment with COMPANY except
as provided in this Negotiated Employment Agreement. XX. XXXX will not seek
re-employment with COMPANY and, if a third party identifies XX. XXXX as a
candidate, COMPANY may reject such application. XX. XXXX and COMPANY understand
and agree that, in the event of a change in control of COMPANY, this subsection
may be subject to modification by specific written agreement between such
successor, COMPANY, and XX. XXXX.
c. XX. XXXX shall cooperate with and assist COMPANY whenever reasonably
possible, so that all of his duties, responsibilities and pending matters can be
transferred in an orderly way;
d. XX. XXXX shall provide COMPANY with full cooperation and assistance,
upon COMPANY's request, including testifying at all trials, when XX. XXXX might
have relevant information. COMPANY shall pay XX. XXXX, at an hourly rate derived
from XX. XXXX'x base monthly salary during the term of this Negotiated
Employment Agreement, for time expended in preparation of trial, including but
not limited to review of records and files, attendance at and review of
depositions, attendance at conferences with counsel, attendance at trial and
assistance with post trial and appeal issues and matters and for any reasonable
and necessary expenses because of his requested cooperation with and assistance
to COMPANY.
e. As a specific condition of this Negotiated Employment Agreement and in
addition to the confidentiality provisions in Paragraph 7, XX. XXXX shall not
disclose to any third party, including future employers or clients, material
details derived from his present or former executive position with COMPANY that
relate to COMPANY's past, present, or future strategic relations with actual or
potential customers, including but not limited to customer contacts, pricing
terms, sales strategies or marketing plans, unless XX. XXXX has received prior
written consent of the Chief Executive Officer of COMPANY or COMPANY's Vice
President for Human Resources. XX. XXXX understands and agrees that information
subject to the limitations of this paragraph may include information not
otherwise subject to the confidentiality provisions of Paragraph 7.
7. Confidentiality of Information:
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XX. XXXX acknowledges that the information, observations and data relating
to the formulation, processing, manufacturing, sale and marketing of COMPANY's
battery and battery related products obtained by XX. XXXX during the course of
XX. XXXX'x employment with COMPANY, its subsidiaries and affiliated companies
and its predecessors (the "Confidential Information") are confidential and the
exclusive property of COMPANY/or such companies. XX. XXXX agrees that he will
not disclose to any unauthorized persons or use for XX. XXXX'x own account or
for the benefit of any third party (other than COMPANY) any of such
"Information" without COMPANY's prior written consent, unless and to the extent
that such "Confidential Information" became generally known to and available for
use by the public other than as a result of XX. XXXX'x acts or failure to act.
Such "Confidential Information", observations and data shall include, but not be
limited to, COMPANY's and its affiliates current and planned information
systems, the names, addresses or particular desires or needs of its customers,
the structure of its markets, the prices charged for its services or products,
its market share, marketing strategies and promotional efforts in any market,
information concerning product development, manufacturing processes, research
and development projects, formulas, inventions and compilations of information,
records or specifications, information concerning future product or market
developments, financial information, information regarding suppliers and costs
of raw materials and other supplies, financing programs, overhead distribution
and other expenses, or conversion costs. XX. XXXX understands and agrees that
such "Confidential Information" is important, material and confidential, and
that disclosure would gravely affect the successful conduct of COMPANY's and its
affiliates' businesses. XX. XXXX and COMPANY's designated representative(s) may
review and mutually agree upon copies of presentation components that are not,
or will not be treated as, Confidential Information under this Negotiated
Employment Agreement and XX. XXXX may retain either copies of such materials or
the originals, with copies retained by COMPANY.
The obligation to protect Confidential Information is on-going and does not
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expire upon the termination of the Parties' contractual relationship.
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8. Subject to Paragraphs 4 and 5 above, by March 31, 2004, or mutually
agreed earlier date, XX. XXXX warrants and represents that he will return and
deliver to COMPANY's designated representative all memoranda, notes, plans,
programs, records, reports, and other documentation (and copies thereof)
relating to the business of COMPANY, its affiliates, and its predecessors which
XX. XXXX possesses or has under his possession now or in the future, including,
but not limited to, computer hardware, software, data and disks, draft books,
memoranda, notes, plans, programs, records, reports, and other documentation
(and copies thereof) relating to COMPANY, office equipment and supplies, credit
cards, cash advances and, if applicable, any outstanding final expense report.
9. Non-Interference and Related Agreements:
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a. For the duration of this Negotiated Employment Agreement and a period of
twelve (12) months after XX. XXXX is removed from COMPANY's payroll, XX. XXXX
shall not (i) induce or attempt to induce any employee of COMPANY to leave the
employ of COMPANY or in any way interfere with the relationship between COMPANY
and its employees or (ii) induce or attempt to induce any customer, supplier,
distributor, broker or other business relation of COMPANY to cease doing
business with the COMPANY, or in any way interfere with the relationship between
any customer, supplier, distributor, broker or other business relation and
COMPANY.
b. COMPANY agrees that its representatives will not make any false or
defamatory statements regarding XX. XXXX to employees of COMPANY, its affiliates
or subsidiaries, its customers, suppliers, and/or agencies.
10. Non Competition
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a. For the duration of this Negotiated Employment Agreement and a period of
twelve (12) months after XX. XXXX is removed from COMPANY's payroll, XX. XXXX
will not compete against COMPANY in COMPANY business. An earlier payroll removal
date pursuant to Paragraphs 4 or 5 shall not shorten the applicable time period
pursuant to this Paragraph.
b. Definition of "COMPANY Business"
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For purposes of this Negotiated Employment Agreement, the term "COMPANY
Business" shall mean any of the following business activities by a company
through a business or facility: (i) manufacturing, marketing, distributing
and/or consulting on and or operating a facility for, the manufacturing,
processing, marketing or distributing of batteries, lighting products,
rechargeable batteries and related battery and lighting products; (ii)
purchasing or producing materials for use as, and marketing and distributing
and/or consulting on the purchasing, producing or marketing or distributing of
such products or materials; and (iii) marketing and distributing, and/or
consulting regarding the marketing or distributing, of such related products or
materials. This obligation extends to the products and/or methods that presently
are used, or were used, or are or were under development or consideration,
whether or not completed, for use in COMPANY Business as of the date XX. XXXX'x
employment ends for any reason. XX. XXXX understands that this definition
applies only to this Negotiated Employment Agreement. Any other restrictions on
competition in other plan, policies or arrangements, including, but not limited
to, those restrictions in the Deferred Compensation Plan for Key Employees,
shall continue to apply as they exist now or may be modified by COMPANY in the
future, as long as such modifications are not directed solely at XX. XXXX.
c. For the purpose of this Negotiated Employment 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 COMPANY Business.
d. This Negotiated Employment Agreement does not prevent XX. XXXX from
buying or selling shares of stock in any company that is publicly listed and
traded in any stock exchange or the over-the-counter market. However, XX. XXXX
may not use Confidential Information to engage in, or induce others to engage
in, xxxxxxx xxxxxxx as prohibited by federal and state securities laws.
11. Release and Waiver:
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The promises and payments contained in this Agreement, including
Paragraphs 1 (except Paragraph 1(j)), 2, and 4 above, are in addition to any
wages to which XX. XXXX already is entitled because of his work for COMPANY.
XX. XXXX agrees to accept the promises and terms in these Paragraphs in
consideration for the settlement, waiver and release and discharge of any and
all claims or actions against Energizer Holdings, Inc. and COMPANY, including
their affiliates, subsidiaries, holding companies, directors, officers,
employees, and agents, arising under any federal, state, or local statute, law,
or regulation pertaining to employment discrimination on the basis of age,
religion, disability, marital status, or any other reason established by law,
including any claim of actual or constructive wrongful discharge.
12. Promise Not to Xxx:
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a. XX. XXXX makes the following promises not to xxx:
i. XX. XXXX releases, settles and forever discharges Energizer
Holdings, Inc. and COMPANY, including their affiliates, subsidiaries,
holding companies, directors, officers, employees, and agents, from any and
all claims, causes of action, rights, demands, debts, or damages of
whatever nature, whether or not XX. XXXX currently knows of them, which
might have arisen from XX. XXXX'x employment with and retirement from
COMPANY and which may be brought by XX. XXXX or another person or agency on
XX. XXXX'x behalf. This includes, but is not limited to, any claim XX. XXXX
might raise under contract or tort law for actual or constructive wrongful
discharge, except those claims which the parties specifically have
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excluded from this release and identified in Paragraph 14 below and except
for a breach by COMPANY of a material provision of this Agreement.
ii XX. XXXX expressly releases Energizer Holdings, Inc. and COMPANY,
including their affiliates, subsidiaries, holding companies, directors,
officers, employees, and agents, from any and all legal liability and
waives all claims, demands, or causes of action which XX. XXXX, or any
person or agency acting on XX. XXXX'x behalf, may have against COMPANY, its
agents, representatives, and employees under all federal, state, and/or
local laws regulating employment, including but not limited to, all
discrimination claims under the Civil Rights Act of 1964, as amended, the
Age Discrimination in Employment Act, the Americans with Disabilities Act,
Civil Rights Act known as 42 USC 1981, the Handicap Discrimination Act, the
Missouri Human Rights Act, as amended, Section 213.010 et seq., the
Missouri Service Letter Statute, as amended, Section 290.140 X.X.Xx., the
Family and Medical Leave Act of 1994, and the Older Worker Benefit
Protection Act.
b. The COMPANY releases, settles, and forever discharges XX. XXXX from any
and all claims, causes of actions, rights demands, debts, or damages of whatever
nature, whether or not COMPANY currently knows them, which might have arisen
from XX. XXXX'x actions or omissions within the scope of his duties during his
employment with the COMPANY and retirement from COMPANY and which may be brought
by the COMPANY or another person or agency on the COMPANY's behalf. This
includes, but is not limited to, any claim COMPANY might raise under contract or
tort law and also includes any claims arising under federal, state, and/or local
laws regulating employment.
13. Remedy for Violation:
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a. In the event that XX. XXXX brings a cause of action against COMPANY in
violation of Paragraphs 11 and 12 above, XX. XXXX understands and agrees to
place in an escrow account an amount equal to any settlement or separation
payment paid to XX. XXXX pursuant to this Agreement (except for payments
pursuant to Paragraph 1(j)) while said cause of action is in litigation. If a
court of competent jurisdiction determines that XX. XXXX should not have brought
such a cause of action because it is without merit and/or prohibited by XX.
XXXX'x promises in this Agreement, then XX. XXXX shall repay to COMPANY any
settlement payment(s) being held in the escrow account, as well as an amount,
with interest, equal to any salary continuation after XX. XXXX is released from
regular full-time duties and responsibilities, other discretionary payments or
services that are paid to or provided to XX. XXXX as consideration for the
promises made by XX. XXXX in this Agreement, and attorneys fees incurred by
COMPANY defending its actions and this Agreement, in addition to any other
damages the Court may deem proper.
b. XX. XXXX further understands that any breach of Paragraphs 6(e), 7,
9 and 10 of this Agreement could cause irreparable harm to the COMPANY. XX.
XXXX agrees that COMPANY has the right to seek an injunction to prevent
violation of XX. XXXX'x obligations under this Agreement, in addition to
COMPANY's right to seek the remedies at law described in subsection (a) above.
14. Excluded Claims:
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This Agreement shall not affect XX. XXXX'x right to raise any claims
based on any Social Security, or Workers' Compensation laws, or based on the
terms in effect at the time the claim is raised of the Energizer Holdings, Inc.
Retirement Plan, Supplemental Retirement Plan, Deferred Compensation Plan,
Savings Investment Plan, Executive Savings Investment Plan, Executive Life and
Health Plans, retiree benefits under the Energizer Medical Plan, and any and all
other executive or employee benefit plans or programs through which he may be
legally entitled to benefits as a result of his employment with COMPANY or
subsequent retirement.
15. Benefit Earnings:
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It is understood and agreed that only the salary continuation and payments
identified in Paragraphs 1(b), (d), and (j) will be considered benefit earnings
for applicable benefit plans maintained by COMPANY. Any other monies paid to
XX. XXXX pursuant to this Negotiated Employment Agreement shall not constitute
earnings for benefit plan purposes.
16. Confidentiality:
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XX. XXXX agrees not to talk about, write about, or otherwise disclose
the existence of this Negotiated Employment Agreement, the terms of this
Negotiated Employment Agreement, or any fact concerning its negotiation,
execution, or implementation to any person, firm, or corporation, other than to
XX. XXXX'x spouse, financial advisor or attorney, unless XX. XXXX is required to
do so by federal, state, or local law, or by a court of competent jurisdiction.
If XX. XXXX discloses the terms of this Negotiated Employment Agreement to XX.
XXXX'x spouse, financial advisor or attorney, XX. XXXX shall advise that
confidentiality is an essential part of this Negotiated Employment Agreement and
advise each that they are bound by the confidentiality clause. XX. XXXX
understands that COMPANY has disclosed, or will disclose, the terms of this
Negotiated Employment Agreement to its Board of Directors and such other COMPANY
employees as COMPANY deemed necessary to implement and administer its terms and
that COMPANY will disclose the terms of this Negotiated Employment Agreement as
required by Security Exchange Commission regulation or if COMPANY reasonably
concludes that it is legally bound to do so for other reason, including but not
limited to application of subpoena or order from a court of competent
jurisdiction.
17. Entire Agreement:
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This Negotiated Employment Agreement is intended to finally and fully
define and conclude the employment relationship between XX. XXXX and COMPANY and
may be amended only by an agreement in writing signed by the parties hereto.
This Negotiated Employment Agreement shall not be interpreted as an admission by
COMPANY, its affiliates or its subsidiaries or XX. XXXX of any wrongdoing or any
violation of federal, state or local law, regulation, or ordinance. The COMPANY
specifically denies that it, or its agents, supervisors, representatives, or
employees of COMPANY, its affiliates or subsidiaries, have ever committed any
wrongdoing whatsoever against XX. XXXX. XX. XXXX specifically denies that he
ever has committed any wrongdoing whatsoever against COMPANY or its affiliates,
subsidiaries, employees, customers, or suppliers.
18. Effect in the Event of Unenforceability:
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If, at the time of enforcement of any of the provisions of this
Negotiated Employment Agreement, but particularly Paragraphs 6(e), 7, 9, and 10
above, a court holds that the restrictions stated herein are unreasonable under
the circumstances then existing, the parties agree that the maximum period,
scope or geographical area reasonable under the circumstances will be
substituted for the stated period, scope or area.
20. Severability:
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In the event that any provision shall be held to be invalid or
unenforceable for any reason whatsoever by a court of competent jurisdiction it
is agreed such invalidity or unenforceability shall not affect any other
provision of this Negotiated Employment Agreement and the remaining covenants,
restrictions and provisions hereof shall remain in full force and effect, and
any court of competent jurisdiction may so modify the objectionable provision as
to make it valid, reasonable and enforceable.
21. Governing Law:
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This Negotiated Employment Agreement will be governed by the internal
law of the State of Missouri and not its law of conflicts.
22. Voluntary Nature of Employment Agreement:
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XX. XXXX expressly acknowledges that he understands all the terms and
effects of this Negotiated Employment Agreement and is entering voluntarily into
this Negotiated Employment Agreement. XX. XXXX expressly acknowledges that the
COMPANY has given him at least twenty-one (21) days to consider this Negotiated
Employment Agreement as originally presented and that the COMPANY also has given
him the opportunity to discuss all aspects of this Negotiated Employment
Agreement with an attorney before signing this Negotiated Employment Agreement.
XX. XXXX states that he has discussed this Negotiated Employment Agreement or,
in the alternative, has freely elected to waive any remaining part of the
twenty-one (21) calendar days and any further opportunity to discuss this
Negotiated Employment Agreement with an attorney before signing it.
23. Right of Revocation:
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XX. XXXX may revoke his acceptance within seven (7) calendar days
after signing this Negotiated Employment Agreement. XX. XXXX'x notice of
revocation must be given to the Vice President, Human Resources, of the COMPANY
in writing within seven (7) calendar days after signing this Negotiated
Employment Agreement in order to be valid and effective. If XX. XXXX does
revoke this Negotiated Employment Agreement, neither XX. XXXX nor COMPANY will
be required to satisfy any of the terms of this Negotiated Employment Agreement.
If XX. XXXX has not revoked his acceptance within seven (7) calendar days, this
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Negotiated Employment Agreement's effectiveness will become final.
EVEREADY BATTERY COMPANY, INC.
XX. XXXX and
ENERGIZER HOLDINGS, INC.
-------------------------- By:
Xxxxx X. Xxxx Xxxxx X. Xxxxxx
Vice President, Human Resources
Eveready Battery Company, Inc.
Signed this _________ day of Signed this _________ day of
___________________, 2002. ___________________, 2002.
Witness: ________
Dated: _________________
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ATTACHMENT A
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RESIGNATION
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I, Xxxxx X. Xxxx, hereby resign my position as an Officer of the following
entities as of March 18, 2002:
Energizer Holdings, Inc.
Eveready Battery Company, Inc.
It has been an honor to serve as an Officer of Energizer Holdings, Inc. and
Eveready Battery Company, Inc., and I will be assisting in effecting a smooth
transition of all responsibilities between now and my departure pursuant to my
negotiated employment agreement with the Company.
Thank you for your support during my tenure with Energizer.
Respectfully,
_______________________________
Xxxxx X. Xxxx Date
