ENERGIZER HOLDINGS, INC. EXECUTIVE SEVERANCE PLAN Effective July 1, 2015 ARTICLE I PURPOSE, INTENT AND TERM OF PLAN
Exhibit 10.5
ENERGIZER HOLDINGS, INC.
EXECUTIVE SEVERANCE PLAN
Effective July 1, 2015
ARTICLE I
PURPOSE, INTENT AND TERM OF PLAN
Section 1.01 Purpose and Intent of the Plan. The purpose of the Plan is to make available to Eligible Employees certain compensation and benefits in the event that such employees employment with the Company or a Subsidiary is terminated as a result of a Qualifying Termination. The Plan is not intended to be an employee benefit plan within the meaning of Section 3(3) of ERISA.
Section 1.02 Term of the Plan. The Plan shall be effective as of the Effective Date and shall continue until terminated pursuant to the provisions set forth herein.
ARTICLE II
DEFINITIONS
Section 2.01 Base Salary shall mean the Participants annual base salary, excluding bonus and incentive compensation, in effect as of the date of the Participants Qualifying Termination.
Section 2.02 Board shall mean the Board of Directors of the Company.
Section 2.03 Cause shall mean (i) the failure of an Eligible Employee to make a good faith effort to substantially perform his or her duties (other than any such failure due to the Eligible Employees disability) or Eligible Employees insubordination with respect to a specific directive of the Eligible Employees supervisor or officer to which the Eligible Employee reports directly or indirectly (or the Board if the Eligible Employee reports to the Board); (ii) Eligible Employees dishonesty, negligence in the performance of his or her duties hereunder or engaging in willful misconduct, which in the case of any such negligence, has caused or is reasonably expected to result in direct or indirect material injury to the Company or its Subsidiaries; (iii) breach by Eligible Employee of any material provision of any written agreement with the Company or its Subsidiaries or material violation of any Company or its Subsidiary policy applicable to Eligible Employee; or (iv) Eligible Employees commission of a crime that constitutes a felony or other crime of moral turpitude or fraud. If, subsequent to Eligible Employees termination of employment hereunder for other than Cause, it is determined in good faith by the Company that Eligible Employees employment could have been terminated for Cause hereunder, Eligible Employees employment shall, at the election of the Company, be deemed to have been terminated for Cause retroactively to the date the events giving rise to Cause occurred.
Section 2.04 Code shall mean the Internal Revenue Code of 1986, as amended, and the regulations and other guidance promulgated thereunder.
Section 2.05 Committee shall mean the Nominating & Executive Compensation Committee of the Board or such other committee appointed by the Board to assist the Company in making determinations required under the Plan in accordance with its terms. The Committee may delegate its authority under the Plan to an individual or another committee.
Section 2.06 Company shall mean Energizer Holdings, Inc.
Section 2.07 Effective Date shall mean July 1, 2015.
Section 2.08 Eligible Employee shall mean any employee of the Company who is listed by name or by title in Appendix I or Appendix II herein, provided that the Plan Administrator may add Eligible Employees to such Appendices from time to time.
Section 2.09 Employer shall mean the Company or, if applicable, the Subsidiary that employs the Eligible Employee.
Section 2.10 ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
Section 2.11 Good Reason shall mean the occurrence of any of the following circumstances:
(i) | a material diminution of an Eligible Employees base compensation or bonus opportunity; |
(ii) | a material diminution of the Eligible Employees authority, duties, or responsibilities; or |
(iii) | a change in the principal place of Eligible Employees employment to a location more than fifty (50) miles distant from the Eligible Employees then current principal place of employment. |
Notwithstanding the foregoing, Good Reason will not be deemed to exist unless (i) the Eligible Employee notifies the Company of the existence of the condition giving rise to such Good Reason within 90 days of the initial existence of such condition, (ii) the Company does not cure such condition within 30 days of such notice, and (iii) the Eligible Employee experiences a voluntary Separation from Service within 120 days of the initial occurrence of such condition.
Section 2.12 Participant shall mean any Eligible Employee who meets the requirements of Article III and thereby becomes eligible for Severance Benefits.
Section 2.13 Plan means this Energizer Holdings, Inc. Executive Severance Plan as set forth herein, and as the same may from time to time be amended.
Section 2.14 Plan Administrator shall mean the individual(s) appointed by the Committee to administer the terms of the Plan as set forth herein and if no individual is appointed by the Committee to serve as the Plan Administrator, the Plan Administrator shall be the Chief Human Resources Officer of the Company. Notwithstanding the preceding sentence, in the event the Plan Administrator is entitled to Severance Benefits under the Plan, the Committee or its delegate (who shall not be the Plan Administrator) shall act as the Plan Administrator for purposes of administering the terms of the Plan with respect to the Plan Administrator. The Plan Administrator may delegate all or any portion of its authority under the Plan to any other person(s).
Section 2.15 Pro-Rata Bonus shall mean a pro-rated annual bonus for the annual bonus year in which an Eligible Employees Qualifying Termination occurs. Such pro-rated annual bonus shall be calculated by multiplying (i) the amount to which the Eligible Employee would have been entitled as an annual bonus had he or she remained employed with the Company or Employer through the end of the bonus year in which such Qualifying Termination occurs (ii) by a fraction, the numerator is the number of days in such bonus year during which the Eligible Employee was employed by the Company or Employer and the denominator of which is the number of days in such bonus year. Such pro-rata annual bonus shall be determined based on actual Company performance during such bonus year, and no amount shall be due to the extent that the Eligible Employee would not have been entitled to an annual bonus had the Eligible Employee remained employed for the duration of the annual bonus year to which such Pro-Rata Bonus relates.
Section 2.16 Qualifying Termination shall mean a Separation from Service of an Eligible Employee either as a result of (i) an involuntary termination of employment of the Eligible Employee without Cause or (ii) a voluntary termination of employment by the Eligible Employee as a result of Good Reason.
Section 2.17 Release shall mean a written agreement, in substance and form suitable to the Company, by which a Participant agrees to waive and release the Company and, if applicable, the Employer from all legal claims the Participant may have against the Company and, if applicable, the Employer in exchange for Severance Benefits. The Release shall include the Participants written agreement to confidentiality, non-solicitation, non-disparagement and non-competition provisions. Releases are not required to be identical amongst Participants.
Section 2.18 Separation from Service shall mean separation from service from the Employer, within the meaning of Code Section 409A(a)(2)(A)(i) and the applicable regulations and rulings promulgated thereunder.
Section 2.19 Severance Benefits shall mean the benefits that a Participant is eligible to receive pursuant to Article IV of the Plan.
Section 2.20 Subsidiary shall mean any service recipient or employer that is within a controlled group of corporations of the Company as defined in Code Sections 1563(a)(1), (2) and (3) where the phrase at least 50% is substituted in each place at least 80% appears and any service recipient or employer within trades or businesses under common control as defined in Code Section 414(c) and Treas. Reg. Section 1.414(c)-2 where the phrase at least 50% is substituted in each place at least 80% appears, provided, however, that when the relevant determination is to be based upon legitimate business criteria (as described in Treas. Reg. Sections 1.409A-1(b)(5)(iii)(E) and 1.409A-1(h)(3)), the phrase at least 20% shall be substituted in each place at least 80% appears as described above with respect to both a controlled group of corporations and trades or business under common control.
ARTICLE III
PARTICIPATION AND ELIGIBILITY FOR BENEFITS
Section 3.01 Participation. Each Eligible Employee in the Plan who experiences a Qualifying Termination and who satisfies all of the conditions of Section 3.02 shall be eligible to receive Severance Benefits.
Section 3.02 Release. Eligibility for any Severance Benefits is expressly conditioned upon the Eligible Employees execution of the Release within the timeframe set forth in the Release, but no later than sixty (60) days following such employees Separation from Service, including the Eligible Employees written acceptance of, and written agreement to comply with, the confidentiality, non-solicitation, non-disparagement and non-competition provisions set forth in the Release. To the extent permitted in Section 4.03, eligibility for any Severance Benefits also is expressly conditioned upon the Eligible Employees written agreement that authorizes the deduction of amounts owed to the Employer prior to the payment of any Severance Benefits (or in accordance with any other schedule as the Plan Administrator may, in its sole discretion, determine to be appropriate). If the Plan Administrator notifies a Participant that repayment of all or any portion of the Severance Benefits received under the Plan is required, such amounts shall be repaid within thirty (30) calendar days after the date the written notice is sent. Any remedy under this Section 3.02 shall be in addition to, and not in place of, any other remedy, including injunctive relief, that the Company or Employer may have.
Section 3.03 Change in Control Agreement. Notwithstanding any provision to the contrary, no benefits shall be paid to an Eligible Employee pursuant to the terms of this Plan upon the event of a Qualifying Termination to the extent that benefits would otherwise be paid to such Eligible Employee pursuant to the terms of a Change in Control Employment Agreement or similar agreement between such Eligible Employee and the Company or Employer.
ARTICLE IV
DETERMINATION OF SEVERANCE BENEFITS
Section 4.01 Amount of Severance Benefits Upon Qualifying Termination. An Eligible Employee who experiences a Qualifying Termination shall, subject to the terms of this Plan, be entitled to the following benefits:
(a) | Lump-Sum Severance. A lump-sum severance benefit in the amount set forth in Appendix I or II, as applicable, which such amount shall be determined in accordance with such Eligible Employees title upon the occurrence of the Qualifying Termination. |
(b) | Outplacement Services. Outplacement services at the outplacement agency that the Company regularly uses for such purpose; provided, however, that the period of outplacement shall not exceed twelve (12) months after the Participants date of Qualifying Termination. |
Section 4.02 Pro-Rata Bonus. An Eligible Employee who experiences a Qualifying Termination shall, subject to the terms of this Plan, be entitled to a Pro-Rata Bonus, but only if so provided in Appendix I or Appendix II.
Section 4.03 Timing and Release.
(a) | Lump-Sum Severance. All amounts described in Section 4.01(a) above shall be paid as soon as administratively practicable following the later of (i) the date of an Eligible Employees Qualifying Termination, and (ii) the date such Eligible Employees Release becomes effective and irrevocable. Notwithstanding the foregoing, in no event will any amount described in Section 4.01(a) above be paid later than two and one-half months following the date of an Eligible Employees Qualifying Termination. Notwithstanding the foregoing or anything herein to the contrary, any amounts described in Section 4.01(a) above that become payable with respect to an Eligible Employee who has a Change in Control Employment Agreement with the Company shall be paid in a cash lump sum on the six month anniversary of the Eligible Employees Qualifying Termination, to the extent required to avoid the adverse tax consequences under Code Section 409A. |
(b) | Pro-Rata Bonus. If an Eligible Employee is entitled to a Pro-Rata Bonus pursuant to Section 4.02 above or Appendix I or Appendix II, such Pro-Rata Bonus shall be paid, if at all, based on actual Company performance during the annual bonus year to which such Pro-Rata Bonus relates. Such Pro-Rata Bonus, if any, shall be paid upon the later of (i) the date annual bonuses for the annual bonus year to which such Pro-Rata Bonus relates are paid to other executive employees of the Company, or (ii) the date the Eligible Employees Release becomes effective and irrevocable. Notwithstanding the foregoing, in no event will any Pro-Rata Bonus be paid later than two and one-half months following the end of the bonus year to which such Pro-Rata Bonus relates. |
(c) | Outplacement. Outplacement benefits shall begin upon the date that the Eligible Employees Release becomes effective and irrevocable. |
Section 4.03 Reduction of Severance Benefits. The Plan Administrator reserves the right to make deductions in accordance with applicable law, and to the extent any such deduction would not result in adverse tax consequences under Code Section 409A, for any monies owed to the Employer by the Eligible Employee or for the value of any Employer property that the Eligible Employee improperly retains and fails to return to the Employer.
ARTICLE V
PLAN ADMINISTRATOR
Section 5.01 Authority and Duties. It shall be the duty of the Plan Administrator, on the basis of information supplied to it by the Employer, to administer the Plan. The Plan Administrator shall have the full and absolute power, authority and discretion to construe, interpret and administer the Plan, to make factual determinations, to correct deficiencies therein and to supply omissions. All decisions, actions and interpretations of the Plan Administrator shall be final,
binding and conclusive upon all parties and may not be overturned unless found by a court to be arbitrary and capricious. The Plan Administrator may adopt such rules and regulations and may make such decisions as it deems necessary or desirable for the proper administration of the Plan.
Section 5.02 Records, Reporting and Disclosure. The Plan Administrator or its delegate shall keep a copy of all records relating to the payment of Severance Benefits to Participants and former Participants and all other records necessary for the proper operation of the Plan. All Plan records shall be made available to the Committee, the Company, and to each Participant for examination during business hours, except that a Participant shall be entitled to examine only such records as pertain exclusively to the examining Participant and to the Plan.
ARTICLE VI
AMENDMENT, TERMINATION AND DURATION
Section 6.01 Amendment, Suspension and Termination. Except as otherwise provided in this Section 6.01, the Board, by action of the Committee, shall have the right, at any time and from time to time, to amend, suspend or terminate the Plan in whole or in part, for any reason or without reason, and without either the consent of or the prior notification to any Participant, by a formal written action. No such amendment shall give the Company the right to recover any amount paid to a Participant prior to the date of such amendment or to cause the cessation of Severance Benefits already approved for a Participant who has executed the Release (and has not revoked his or her agreement to the Release). Any amendment or termination of the Plan must comply with all applicable legal requirements including, without limitation, compliance with Code Section 409A and the regulations and rulings promulgated thereunder, securities, tax, or other laws, rules, regulations or regulatory interpretation thereof, applicable to the Plan.
Section 6.02 Duration. The Plan shall continue in full force and effect until its amendment or termination.
ARTICLE VII
DUTIES OF THE COMPANY AND THE COMMITTEE
Section 7.01 Records. The Company or Employer, as applicable, shall supply to the Committee all records and information necessary to the performance of the Committees duties.
Section 7.02 Payment. The provision of Severance Benefits to Participants shall be made from the Companys general assets, in accordance with the terms of the Plan.
Section 7.03 Discretion. Any decisions, actions or interpretations to be made under the Plan by the Board, the Committee or the Plan Administrator, acting on behalf of either, shall be made in each of their respective sole discretion, not in any fiduciary capacity and need not be uniformly applied to similarly situated individuals and such decisions, actions or interpretations shall be final, binding and conclusive upon all parties. As a condition of participating in the Plan, the Eligible Employee acknowledges that all decisions and determinations of the Board, the Committee and the Plan Administrator shall be final and binding on the Eligible Employee, the Eligible Employees beneficiaries and any other person having or claiming an interest under the Plan on behalf of an Eligible Employee.
ARTICLE X
MISCELLANEOUS
Section 8.01 Non-Alienation of Benefits. None of the payments, benefits or rights of any Participant shall be subject to any claim of any creditor of any Participant, and, in particular, to the fullest extent permitted by law, all such payments, benefits and rights shall be free from attachment, garnishment (if permitted under applicable law), trustees process or any other legal or equitable process available to any creditor of such Participant. No Participant shall have the right to alienate, anticipate, commute, plead, encumber or assign any of the benefits or payments that he may expect to receive, contingently or otherwise, under this Plan.
Section 10.02 Notices. All notices and other communications required hereunder shall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier service. In the case of the Participant, mailed notices shall be addressed to him or her at the home address which he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to the Plan Administrator, as follows: Chief Human Resources Officer, Energizer Holdings, Inc., 533 Maryville University Dr., St. Louis, MO 63141.
Section 10.03 Successors. Any successor to the Company shall assume the obligations under this Plan and expressly agree to perform the obligations under this Plan.
Section 10.04 Other Payments. Except as otherwise provided in this Plan, no Participant shall be entitled to any cash payments or other benefits under any of the Companys then-current severance pay policies or plans for a termination that is covered by this Plan.
Section 10.05 No Mitigation. Except as otherwise provided in Section 4.03, a Participant shall not be required to mitigate the amount of any Severance Benefits provided for in this Plan by seeking other employment or otherwise, nor shall the amount of any Severance Benefits provided for herein be reduced by any compensation earned by other employment or otherwise.
Section 10.06 No Contract of Employment. Neither the establishment of the Plan, nor any modification thereof, nor the creation of any fund, trust or account, nor the payment of any benefits shall be construed as giving any Eligible Employee or any person whosoever, the right to be retained in the service of the Company or its Subsidiaries, and all Eligible Employees shall remain subject to discharge to the same extent as if the Plan had never been adopted.
Section 10.07 Severability of Provisions. If any provision of this Plan shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect any other provisions hereof, and this Plan shall be construed and enforced as if such provisions had not been included.
Section 10.08 Heirs, Assigns, and Personal Representatives. This Plan shall be binding upon the heirs, executors, administrators, successors and assigns of the parties, including each Participant, present and future.
Section 10.09 Headings, Captions and Titles. The titles of the Articles and Sections and the headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan or considered in any respect to affect or modify its provisions, and shall not be employed in the construction of the Plan. Such words in this Plan as herein, hereinafter, hereof and hereunder refer to this instrument as a whole and not merely to the subdivision in which said words appear.
Section 10.10 Gender and Number. Where the context admits: words in any gender shall include any other gender and, except where otherwise clearly indicated by context, the singular shall include the plural, and vice-versa.
Section 10.11 Unfunded Plan. The Plan shall not be funded. No Participant shall have any right to, or interest in, any assets of the Company or its Subsidiaries that may be applied by the Company or its Subsidiaries to the payment of Severance Benefits.
Section 10.12 Payments to Incompetent Persons. Any benefit payable to or for the benefit of a minor, an incompetent person or other person incapable of receipting therefor shall be deemed paid when paid to such persons guardian or to the party providing or reasonably appearing to provide for the care of such person, and such payment shall fully discharge the Company and its Subsidiaries, the Committee and all other parties with respect thereto.
Section 10.13 Controlling Law. This Plan shall be construed and enforced according to the laws of the State of Missouri to the extent not superseded by federal law, which shall otherwise control.
Section 10.14 Section 409A. Notwithstanding anything to the contrary in this Plan, if an Eligible Employee is a specified employee as defined in Code Section 409A, any payment hereunder on account of a separation from service may not be made until at least six months after such separation from service, to the extent required to avoid the adverse tax consequences under Code Section 409A. Any such payment otherwise due in such six month period shall be suspended and become payable at the end of such six month period.
APPENDIX I
ELIGIBLE EMPLOYEES / BENEFIT
Eligible Employee | Benefit | |
Chief Executive Officer of the Company | Two Times Base Salary plus Pro-Rata Bonus | |
Chief Operations Officer of the Company | Two Times Base Salary plus Pro-Rata Bonus | |
Chief Financial Officer of the Company | Two Times Base Salary plus Pro-Rata Bonus | |
Chief Supply Chain Officer | One Times Base Salary | |
General Counsel | One Times Base Salary | |
Chief Human Resources Officer | One Times Base Salary |