**Exhibit 10.45**AMENDED AND RESTATED EMPLOYMENT AGREEMENTAMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated October 10, 2006 by and between, Jacuzzi Brands,Inc., a Delaware corporation, with its principal office at Phillips Point — West Tower, 777 SouthFlagler Drive, Suite 1108, West Palm Beach, Florida 33401 (the “Company”), and Alex P. Marini(“Executive”).WITNESSETHWHEREAS, the Company has employed Executive as President and Chief Executive Officer effectiveSeptember 1, 2006 (the “Commencement Date”); andWHEREAS, the Company and the Executive previously entered into an employment agreement (the “PriorAgreement”) on August 11, 2005; andWHEREAS, the Company and Executive desire to amend the terms of the Prior Agreement by amending andrestating the Prior Agreement with this agreement (the “Agreement”), effective on the CommencementDate.NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and forother good and valuable consideration, the parties agree as follows:
 

 
     1. Term of Employment. Except for earlier termination as provided in Section 7hereof, Executive’s employment under this Agreement shall be for a three-year term (the “EmploymentTerm”) commencing on the Commencement Date and ending three (3) years thereafter. Subject toSection 7 hereof, the Employment Term shall be automatically extended for additional terms ofsuccessive one (1) year periods unless the Company or Executive gives written notice to the otherat least ninety (90) days prior to the expiration of the then current Employment Term of thetermination of Executive’s employment hereunder at the end of such current Employment Term.     2. Positions.          (a) Executive shall serve as President and Chief Executive Officer of the Company and reportdirectly to the Board of Directors of the Company (the “Board”). Executive shall be elected to theBoard effective on the Commencement Date. If requested by the Board, Executive shall also serve asan executive officer and director of subsidiaries and a director of associated companies of theCompany without additional compensation and subject to any policy of the Board or any compensationcommittee of the Board with regard to retention or turnover of the director’s fees.          (b) Executive shall have such duties and authority, consistent with his position as the ChiefExecutive Officer as shall be assigned to him from time to time by the Board.          (c) During the Employment Term, Executive shall devote all of his business time and efforts tothe performance of his duties hereunder; provided, however, that Executive shall be allowed, to theextent that such activities do not materially interfere with the performance of his duties andresponsibilities hereunder, to manage his
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passive personal interests and to serve on civic or charitable boards or committees, andsubject to the next sentence, serve on corporate boards of directors. Executive may serve oncorporate boards of directors only if approved in advance by the Board (which approval may bewithdrawn at any time) and shall not serve on any corporate board of directors if such servicewould be inconsistent with his fiduciary responsibilities to the Company.     3. Base Salary. During the Employment Term, the Executive shall receive a base salaryat the annual rate of not less than $575,000. Base salary shall be payable in accordance with theusual payroll practices of the Company. Executive’s base salary shall be subject to annual reviewby the Board during the Employment Term and may be increased, but not decreased, from time to timeby the Board. The base salary as determined as aforesaid from time to time shall constitute “BaseSalary” for purposes of this Agreement.     4. Incentive Compensation.          (a) Bonus. For the fiscal years commencing on or about October 1, 2006 and thereafterduring the Employment Term, Executive shall be eligible to participate in an incentive bonus planof the Company in accordance with, and subject to, the terms of such plan, that provides an annualcash target bonus opportunity equal to at least 100% of Base Salary (the “Target Bonus”), whichshall be converted into a like benefit if and when the Company implements its proposed value addedplan or such other program that the Company shall adopt. In addition, commencing on or aboutOctober 1, 2006 and thereafter during the Employment Term, Executive shall be eligible toparticipate in the Company’s long term incentive program which shall provide Executive
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with the opportunity to receive awards at a level equal to 150% of Base Salary, which shall beconverted into a like benefit if and when the Company implements its proposed value added plan orsuch other program that the Company shall adopt. For the fiscal year ending September 30, 2006,Executive shall be eligible to receive a bonus in accordance with the terms of Section 4(a) of thePrior Agreement.          (b) Other Compensation. The Company may award to Executive such other bonuses andcompensation as it deems appropriate and reasonable.          (c) Restricted Stock. The Restricted Stock awarded pursuant to Section 4(b) of thePrior Agreement shall continue to be governed by the vesting provisions of the Prior Agreement andthe retirement provisions of the Prior Agreement.     5. Employee Benefits and Vacation.          (a) During the Employment Term, Executive shall be entitled to participate in all pension,long-term incentive compensation, retirement, savings, welfare and other employee benefit plans andarrangements and fringe benefits and perquisites generally maintained by the Company from time totime for the benefit of its senior executive officers, in each case in accordance with theirrespective terms as in effect from time to time.          (b) During the Employment Term, Executive shall be entitled to vacation each year inaccordance with the Company’s policies in effect from time to time, but in no event less than four(4) weeks paid vacation per calendar year. Executive shall also be entitled to such periods ofpaid sick leave as is customarily provided by the Company to its senior executive employees.
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          (c) If Executive’s employment with the Company terminates due to his retirement from theCompany no earlier than age 62 and so long as such retirement is not in connection with atermination pursuant to Section 7(d) hereof, Executive shall be provided with a minimum monthlyretirement benefit (“Minimum Pension”) payable in the form of a joint and survivor annuity for thebenefit of Executive and Executive’s spouse. During Executive’s life, the amount of the MinimumPension shall be equal to $20,000 per month beginning at such actual retirement date consisting ofthe sum of any monthly benefits accrued or payable under any qualified or non-qualified pensionplans covering the Executive during his employment with the Company and/or Zurn Industries, Inc., aPennsylvania corporation, (including, without limitation, the Jacuzzi Brands Inc. SupplementalExecutive Retirement Plan (the “Jacuzzi SERP”) and the Zurn Supplemental Pension Plan (the “ZurnSUPP”)) and/or the actuarial equivalent of such benefits, in the form of a joint and survivorannuity for the benefit of Executive and Executive’s spouse, if the benefits are not paid monthly,(collectively, the “Executive’s Retirement Plans”) plus such additional monthly amounts as may benecessary to provide for the Minimum Pension. The survivor annuity benefit shall be 60% of theMinimum Pension. However, if Executive or his spouse is entitled to a greater benefit under theterms of the Executive Retirement Plans (actuarially calculated using the actuarial factors thenapplying in the Company’s defined benefit plan), then Executive or his spouse shall receive thebenefits payable under the Executive Retirement Plans in lieu of the Minimum Pension. The benefitpaid under the Jacuzzi SERP shall be paid in the form of a joint and survivor annuity for thebenefit of Executive and Executive’s spouse, with the
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spouse receiving a 60% survivor benefit. Anything contained herein to the contrarynotwithstanding, if the Executive’s spouse at the time of his death is more than five (5) yearsyounger than his current spouse on the date hereof, the aforesaid survivor annuity benefit shall beactuarially adjusted to reflect the age of his then spouse as compared to the age of his spouse onthe date hereof. In the event that Executive voluntarily terminates his employment with theCompany for any reason other than Termination for Good Reason, death or Disability, the Executiveshall only be entitled to receive his benefits under this Section 5(c) if the Executive gives theCompany at least six months prior written notice of such termination. In the event that Executivedoes not give the Company such written notice, the Executive shall be obligated to pay the Companyan amount equal to the then current annual Base Salary, which shall be withheld from all otheramounts due and owing to the Executive from the Company or shall be paid in full by the Executive,in his sole discretion.          (d) If Executive’s employment with the Company terminates due to his retirement from theCompany no earlier than age 62 and so long as such retirement is not in connection with atermination pursuant to Section 7(d) hereof, Executive and his spouse shall be receive retireemedical benefits pursuant to the terms of the Company’s retiree medical plan covering the seniorexecutives of the Company at the time of such termination, provided however, if such retireemedical benefits, or related terms, are modified or terminated for retired participants in suchplan, (or its successor or replacement plan), such modification or termination shall also apply toExecutive.     6. Business Expenses. The Company shall reimburse Executive for the travel,entertainment and other business expenses incurred by Executive in the
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performance of his duties hereunder, in accordance with the Company’s policies as in effectfrom time to time.     7. Termination.          (a) The employment of Executive and the Employment Term shall terminate as provided in Section1 hereof or, if earlier, upon the earliest to occur of any of the following events:               (i) the death of Executive;               (ii) the termination of Executive’s Employment by the Company due to Executive’sDisability (as defined in Exhibit A) pursuant to Section 7(b) hereof;               (iii) the termination of Executive’s Employment by the Executive for Good Reason (asdefined in Exhibit A) pursuant to Section 7(c) hereof;               (iv) the termination of Executive’s employment by the Company without Cause (asdefined in Exhibit A) pursuant to Section 7(e) hereof;               (v) the termination of employment by Executive without Good Reason upon sixty (60)days prior written notice pursuant to Section 7(e) hereof; or               (vi) the termination of Executive’s employment by the Company for Cause pursuant toSection 7(d) hereof.          (b) Disability. If Executive incurs a Disability, the Company may terminateExecutive’s employment for Disability, upon thirty (30) days written notice by a Notice ofDisability Termination, at any time thereafter during such twelve (12) month
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period while Executive is unable to carry out his duties as a result of the same or relatedphysical or mental illness or incapacity. Such termination shall not be effective if Executivereturns to the full time performance of his material duties within such thirty (30) day period.          (c) Termination for Good Reason. A Termination for Good Reason means a termination byExecutive by written notice given within ninety (90) days after the occurrence of the Good Reasonevent, unless such circumstances are fully corrected prior to the date of termination specified inthe Notice of Termination for Good Reason. A Notice of Termination for Good Reason shall mean anotice that shall indicate the specific Good Reason event relied upon and shall set forth inreasonable detail the facts and circumstances claimed to provide a basis for Termination for GoodReason. The failure by Executive to set forth in the Notice of Termination for Good Reason anyfacts or circumstances which contribute to the showing of Good Reason shall not waive any right ofExecutive hereunder or preclude Executive from asserting such fact or circumstance in enforcing hisrights hereunder. The Notice of Termination for Good Reason shall provide for a date oftermination not less than ten (10) nor more than sixty (60) days after the date such Notice ofTermination for Good Reason is given.          (d) Cause. Subject to the notification provisions of this Section 7(d), Executive’semployment hereunder may be terminated by the Board, or an authorized committee thereof for, Cause.A Notice of Termination for Cause shall mean a notice that shall indicate the specific terminationprovision in Section (a) of Exhibit A relied upon and shall set forth in reasonable detail thefacts and circumstances which provide for a basis for Termination for Cause. The date oftermination for a Termination for
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Cause shall be the date indicated in the Notice of Termination for Cause. Any purportedTermination for Cause which is held by a court not to have been based on the grounds set forth inthis Agreement or not to have followed the procedures set forth in this Agreement shall be deemed atermination by the Company without Cause.          (e) Other Terminations. The Executive’s employment by the Company shall be at will.Accordingly, the Company may terminate the Executive at any time (with or without notice), forreasons other than Cause or for no reason. Subject to Section 5(c) above, the Executive mayterminate his employment with the Company at any time upon sixty (60) days prior written notice.     8. Consequences of Termination of Employment.          (a) Death, Disability, Voluntary Resignation without Good Reason, for Cause, Nonextensionof the Employment Term by Executive. If Executive’s employment and the Employment Term areterminated by reason of (i) Executive’s death or Disability, (ii) by Executive without Good Reason,or as a result of a notice of nonextension of the Employment Term by Executive or (iii) by theCompany for Cause or pursuant to Section 7(a)(vi) hereof, the Employment Term under this Agreementshall terminate without further obligations to Executive or Executive’s legal representatives underthis Agreement except for: (i) any Base Salary earned but unpaid through the date of termination,any earned but unpaid bonus, any accrued but unused vacation pay payable pursuant to the Company’spolicies, and any unreimbursed business expenses payable pursuant to Section 6 (collectively“Accrued Amounts”) (which, amounts shall, in the event of Executive’s death, be promptly paid in alump sum to Executive’s estate) and (ii) any other amounts or benefits owing to Executive under thethen applicable
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employee benefit plans, long-term incentive plans or equity plans and programs of the Companywhich shall be paid in accordance with such plans and programs, including, if applicable, theMinimum Pension in Section 5(c) above (provided proper written notice is given by Executive inaccordance with Section 5(c) above).          (b) Termination by Executive for Good Reason, or Termination by the Company withoutCause. If Executive’s employment and the Employment Term are terminated (i) by the Executivefor Good Reason, or (ii) by the Company without Cause (and other than for Disability or pursuant toSection 7(a)(vi)), Executive shall be entitled to receive the Accrued Amounts, and shall, subjectto Sections 9(b), 9(c) and 10 hereof, be entitled to receive:(A) (1) Equal monthly payments in an amount equal to his then monthly rate of Base Salary(minimum $575,000), for a period of twenty four (24) months;   (2) Notwithstanding the preceding paragraph 8(b)(A)(1), if such termination occurs withintwo (2) years after a Change in Control, in lieu of the foregoing, Executive shall receivein a lump sum within five (5) days after compliance with such Section 9(b) the amount equalto the product of Executive’s Base Salary at the time of the Change in Control (minimum$575,000) plus the greater of (i) Executive’s Target Bonus for the fiscal year in which thetermination occurs, or (ii) the Executive’s Target Bonus in the fiscal year immediatelypreceding the date in which the Change in Control occurs, multiplied by two (2); (B) Any other amounts or benefits owing to Executive under the then applicable employee benefit,long term incentive or equity plans and programs of the Company which shall be paid inaccordance with such plans and programs;
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  provided that, if such termination occurs within two (2) years after a Change in Control,Executive will also be entitled to accelerated vesting of all equity compensation under anyequity-based compensation plans, programs or policies of the Company;(C) If such termination is within two (2) years after a Change in Control, two (2) years ofadditional service and compensation credit (at the compensation level in the fiscal yearending immediately prior to the Change in Control) for pension purposes under any definedbenefit type qualified or nonqualified pension plan or arrangement of the Company, whichpayment shall be made through and in accordance with the terms of the nonqualified definedbenefit pension arrangement if any then exists, or, if not, in an actuarially equivalent lumpsum (using the actuarial factors then applying in the Company’s defined benefit plan coveringExecutive); (D) If such termination is within two (2) years after a Change in Control, an amount equal to two(2) years of the maximum Company contribution (assuming Executive deferred the maximum amountand continued to earn his then current salary) under any type of qualified or nonqualified401(k) plan, which payments shall be made in lump sum; (E) If such termination is within two (2) years after a Change in Control, payment of Executive’sand his dependents’ premiums for health and medical insurance coverage, which providessubstantially similar benefits as was being provided to Executive on the day prior toExecutive’s termination of employment, for two (2) years following Executive’s date oftermination; and
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(F) If such termination is effective at or after age 62, the Minimum Pension.          (c) Other*.*If (A) Executive’s employment with the Company is terminated by theExecutive for Good Reason or the Company without Cause, and (B) if such termination is made withouta good faith determination made by the Board that the Executive has not been successfullyperforming and completing his duties as assigned to him by the Board, then the Executive shallreceive a bonus in the amount determined by multiplying the amount of the bonus Executive wouldhave been entitled to receive had he remained in the Company’s employment for the remainder of theperiod with respect to which the bonus is granted (“Bonus Period”), by the ratio determined bydividing X , the amount of days in the Bonus Period that Executive is employed with the Company, byY, the total amount of days in the Bonus Period, payable at the time the bonus would have otherwisebeen paid if Executive’s employment had not been terminated. The decision by the Board to make ornot to make the determination referred to in the previous sentence shall be final, conclusive andbinding.     Notwithstanding any provision to the contrary, if Executive’s death should occur whileExecutive is receiving payments or entitlements pursuant to this Section 8, Executive’s spouse (orestate) will continue to be provided with such payments and benefits for the remainder of the two(2) year period.     9. (a) No Mitigation; No Set-Off. In the event of any termination of employment underSection 8, Executive shall be under no obligation to seek other employment and there shall be nooffset against any amounts due Executive under this Agreement on account of any remunerationattributable to any subsequent employment that Executive may obtain. Any amounts due under Section8 are in the nature of
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severance payments and are not in the nature of a penalty. Such amounts are inclusive, and inlieu of any, amounts payable under any other salary continuation or cash severance arrangement ofthe Company and to the extent paid or provided under any other such arrangement shall be offsetfrom the amount due hereunder.          (b) Executive agrees that, as a condition to receiving the payments and benefits providedunder Section 8(b) hereunder he will execute, deliver and not revoke (within the time periodpermitted by applicable law) a release of all claims of any kind whatsoever against the Company,its affiliates, officers, directors, employees, agents and shareholders in the then standard formbeing used by the Company for senior executives (but without release of the right ofindemnification hereunder or under the Company’s By-laws or rights under benefit or equity plansthat by their terms are intended to survive termination of his employment).          (c) Upon any termination of employment, Executive hereby resigns as an officer and director ofthe Company, any subsidiary and any affiliate and as a fiduciary of any benefit plan of any of theforegoing. Executive shall promptly execute any further documentation thereof as requested by theCompany and, if the Executive is to receive any payments from the Company, execution of suchfurther documentation shall be a condition thereof.10. Covenants Against Disclosure, Solicitation and Competition.          (a) Executive acknowledges that as a result of his employment by the Company, Executive willobtain secret and confidential information as to the Company and its affiliates and createrelationships with customers, suppliers and other persons dealing with the Company and itsaffiliates and the Company and its affiliates will suffer
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substantial damage, which would be difficult to ascertain, if Executive should use suchconfidential information or take advantage of such relationship and that because of the nature ofthe information that will be known to Executive and the relationships created it is necessary forthe Company and its affiliates to be protected by the Confidentiality restrictions set forthherein. Executive acknowledges that the provisions of this Agreement are reasonable and necessaryfor the protection of the businesses of the Company and its affiliates and that part of thecompensation paid under this Agreement and the agreement to pay severance in certain instances isin consideration for the agreements in this Section 10.          (b) Executive acknowledges that the retention of nonclerical employees employed by the Companyand its affiliates in which the Company and its affiliates have invested training and depends onfor the operation of their businesses is important to the businesses of the Company and itsaffiliates, that Executive will obtain unique information as to such employees as an executive ofthe Company and will develop a unique relationship with such persons as a result of being anexecutive of the Company and, therefore, it is necessary for the Company and its affiliates to beprotected from Executive’s Solicitation of such employees as set forth below.          (c) Executive acknowledges that the provisions of this Agreement are reasonable and necessaryfor the protection of the businesses of the Company and its affiliates and that part of thecompensation paid under this Agreement and the agreement to pay severance in certain instances isin consideration for the agreements in this Section.
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          (d) “Competition” means participating, directly or indirectly, as an individual proprietor,partner, stockholder, officer, employee, director, joint venturer, investor, lender, consultant orin any capacity whatsoever (within the United States of America, or in any country where theCompany or its affiliates do business) in a business in meaningful competition with the Company’sbusinesses, provided, however, that such participation shall not include (i) the mere ownership ofnot more than one percent (1%) of the total outstanding stock of a publicly held company; or (ii)any activity engaged in with the prior written approval of the Board.          (e) “Solicitation” means recruiting, soliciting or inducing, of any nonclerical employee oremployees of the Company or its affiliates to terminate their employment with, or otherwise ceasetheir relationship with, the Company or its affiliates or hiring or assisting another person orentity to hire any nonclerical employee of the Company or its affiliates or any person who withinsix (6) months before had been a nonclerical employee of the Company or its affiliates and wererecruited or solicited for such employment or other retention while an employee of the Company,provided, however, that solicitation shall not include any of the foregoing activities engaged inwith the prior written approval of the Board.          (f) If any restriction set forth with regard to Competition or Solicitation is found by anycourt of competent jurisdiction, or an arbitrator, to be unenforceable because it extends for toolong a period of time or over too great a range of activities or in too broad a geographic area, itshall be interpreted to extend over the maximum period of time, range of activities or geographicarea as to which it may be enforceable. If any provision of this Section shall be declared to beinvalid or
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unenforceable, in whole or in part, as a result of the foregoing, as a result of public policyor for any other reason, such invalidity shall not affect the remaining provisions of this Sectionwhich shall remain in full force and effect.          (g) During and after the Employment Term, Executive shall hold in a fiduciary capacity for thebenefit of the Company and its affiliates all secret or confidential information, knowledge or datarelating to the Company and its affiliates, and their respective businesses, including anyconfidential information as to customers of the Company and its affiliates, (i) obtained byExecutive during his employment by the Company and its affiliates and (ii) not otherwise publicknowledge or known within the applicable industry. Executive shall not, without prior writtenconsent of the Company, unless compelled pursuant to the order of a court or other governmental orlegal body having jurisdiction over such matter, communicate or divulge any such information,knowledge or data to anyone other than the Company and those designated by it. In the eventExecutive is compelled by order of a court or other governmental or legal body to communicate ordivulge any such information, knowledge or data to anyone other than the foregoing, he shallpromptly notify the Company of any such order and he shall cooperate fully with the Company inprotecting such information to the extent possible under applicable law.          (h) Upon termination of his employment with the Company and its affiliates, or at any time asthe Company may request, Executive shall promptly deliver to the Company, as requested, alldocuments (whether prepared by the Company, an affiliate, Executive or a third party) relating tothe Company, an affiliate or any of their businesses or property which he may possess or have underhis direction or control other
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than documents provided to Executive in his capacity as a participant in any employee benefitplan, policy or program of the Company or any agreement by and between Executive and the Companywith regard to Executive’s employment or severance.          (i) During the period the Executive is employed by the Company and for two (2) years followinga termination of Executive’s employment for any reason whatsoever, Executive shall not engage inSolicitation, and shall not enter into Competition with the Company or its affiliates.          (j) In the event of a breach or potential breach of this Section 10, Executive acknowledgesthat the Company and its affiliates will be caused irreparable injury and that money damages maynot be an adequate remedy and agree that the Company and its affiliates shall be entitled toinjunctive relief (in addition to its other remedies at law) to have the provisions of this Section10 enforced. It is hereby acknowledged that the provisions of this Section 10 are for the benefitof the Company and all of the affiliates of the Company and each such entity may enforce theprovisions of this Section 10 and only the applicable entity can waive the rights hereunder withrespect to its confidential information and employees.          (k) In the event of breach, as adjudicated by a court of competent jurisdiction, of thisSection 10 by Executive, while Executive is receiving amounts under this Agreement, (i) Executiveshall not be entitled to receive any future amounts pursuant to this Agreement, and (ii) Executiveshall be obligated to return to the Company, within 10 days of such adjudication, all amounts paidby the Company pursuant to this Agreement on or after the date of the breach.
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          (l) Executive specifically agrees that the restrictive covenants and other provisions of thisSection 10 shall be enforceable by the Company’s successors and/or assigns.          (m) Furthermore, in the event of breach of this Section 10 by Executive, while he is receivingamounts under Section 8(b) hereof, Executive shall not be entitled to receive any future amountspursuant to Section 8(b) hereof.     11. Indemnification. The Company shall indemnify and hold harmless Executive to theextent provided in the Certificate of Incorporation and By-Laws of the Company for any action orinaction of Executive while serving as an officer and director of the Company or as an officer ordirector of any other subsidiary or affiliate of the Company or as a fiduciary of any benefit plan.The Company shall cover Executive under directors and officers liability insurance both duringand, while potential liability exists, after the Employment Term in the same amount and to the sameextent as the Company covers its other officers and directors.     12. Special Tax Provision.          (a) Anything in this Agreement to the contrary notwithstanding, in the event that any amountor benefit paid, payable, or to be paid, or distributed, distributable, or to be distributed to orwith respect to Executive by the Company (whether pursuant to the terms of this Agreement or anyother plan; arrangement or agreement with the Company, any person whose actions result in a changeof ownership covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the“Code”) or any person affiliated with the Company or such person) as a result of a change inownership of the Company or a direct or indirect parent thereof (collectively, the “Covered
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Payments”) is or becomes subject to the excise tax imposed by or under Section 4999 of theCode (or any similar tax that may hereafter be imposed), and/or any interest or penalties withrespect to such excise tax (such excise tax, together with such interest and penalties, ishereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Executive anadditional amount (the “Tax Reimbursement Payment”) such that after payment by Executive of alltaxes (including, without limitation, any interest or penalties and any Excise Tax imposed on orattributable to the Tax Reimbursement Payment itself), Executive retains an amount of the TaxReimbursement Payment equal to the sum of (i) the amount of the Excise Tax imposed upon the CoveredPayments, and (ii) without duplication, an amount equal to the product of (A) any deductionsdisallowed for federal, state or local income or payroll tax purposes because of the inclusion ofthe Tax Reimbursement Payment in Executive’s adjusted gross income, and (B) the highest applicablemarginal rate of federal, state or local income taxation, respectively, for the calendar year inwhich the Tax Reimbursement Payment is made or is to be made. The intent of this Section 12 is that(a) the Executive, after paying his Federal, state and local income tax and any payroll taxes onExecutive, will be in the same position as if he was not subject to the Excise Tax under Section4999 of the Code and did not receive the extra payments pursuant to this Section 12 and (b) thatExecutive should never be “out-of-pocket” with respect to any tax or other amount subject to thisSection 12, whether payable to any taxing authority or repayable to the Company, and this Section12 shall be interpreted accordingly.
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          (b) Except as otherwise provided in Section 12(a), for purposes of determining whether any ofthe Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax,               (i) such Covered Payments will be treated as “parachute payments” (within the meaningof Section 280G(b)(2) of the Code) and such payments in excess of the Code Section280G(b)(3) “base amount” shall be treated as subject to the Excise Tax, unless, and exceptto the extent that, the Company’s independent certified public accountants appointed priorto the change in ownership covered by Code Section 280G(b)(2) or legal counsel (reasonablyacceptable to Executive) appointed by such public accountants (or, if the publicaccountants decline such appointment and decline appointing such legal counsel, suchindependent certified public accountants as promptly mutually agreed on in good faith bythe Company and the Executive) (the “Accountant”), deliver a written opinion to Executive,reasonably satisfactory to Executive’s legal counsel, that Executive has a reasonable basisto claim that the Covered Payments (in whole or in part) (A) do not constitute “parachutepayments”, (B) represent reasonable compensation for services actually rendered (within themeaning of Section 280G(b)(4) of the Code) in excess of the “base amount” allocable to suchreasonable compensation, or (C) such “parachute payments” are otherwise not subject to suchExcise Tax (with appropriate legal authority, detailed analysis and explanation providedtherein by the Accountants); and
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               (ii) the value of any Covered Payments which are non-cash benefits or deferredpayments or benefits shall be determined by the Accountant in accordance with theprinciples of Section 280G of the Code.          (c) For purposes of determining the amount of the Tax Reimbursement Payment, Executive shallbe deemed:               (i) to pay federal, state, local income and/or payroll taxes at the highest applicablemarginal rate of income taxation for the calendar year in which the Tax ReimbursementPayment is made or is to be made, and               (ii) to have otherwise allowable deductions for federal, state and local income andpayroll tax purposes at least equal to those disallowed due to the inclusion of the TaxReimbursement Payment in Executive’s adjusted gross income.          (d) (i) (A) In the event that prior to the time Executive has filed any of his tax returns forthe calendar year in which the change in ownership event covered by Code Section 280G(b)(2)occurred, the Accountant determines, for any reason whatever, the correct amount of the TaxReimbursement Payment to be less than the amount determined at the time the Tax ReimbursementPayment was made, the Executive shall repay to the Company, at the time that the amount of suchreduction in Tax Reimbursement Payment is determined by the Accountant, the portion of the priorTax Reimbursement Payment attributable to such reduction (including the portion of the TaxReimbursement Payment attributable to the Excise Tax and federal, state and local income andpayroll tax imposed on the portion of the Tax Reimbursement Payment being repaid by Executive,using the assumptions and methodology utilized to calculate the Tax
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Reimbursement Payment (unless manifestly erroneous)), plus interest on the amount of suchrepayment at the rate provided in Section 1274(b)(2)(B) of the Code.(B) In the event that the determination set forth in (A) above is made by the Accountant afterthe filing by Executive of any of his tax returns for the calendar year in which the change inownership event covered by Code Section 280G(b)(2) occurred but prior to one (1) year afterthe occurrence of such change in ownership, Executive shall file at the request of the Companyan amended tax return in accordance with the Accountant’s determination, but no portion of theTax Reimbursement Payment shall be required to be refunded to the Company until actual refundor credit of such portion has been made to Executive, and interest payable to the Companyshall not exceed the interest received or credited to Executive by such tax authority for theperiod it held such portion (less any tax Executive must pay on such interest and which he isunable to deduct as a result of payment of the refund).(C) In the event Executive receives a refund pursuant to (B) above and repays such amount to theCompany, Executive shall thereafter file for refunds or credits by reason of the repayments tothe Company.(D) Executive and the Company shall mutually agree upon the course of action, if any, to bepursued (which shall be at the expense of the Company) if Executive’s claim for refund orcredit is denied.               (ii) In the event that the Excise Tax is later determined by the Accountants or theInternal Revenue Service to exceed the amount taken into account hereunder at the time theTax Reimbursement Payment is made
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(including by reason of any payment the existence or amount of which cannot bedetermined at the time of the Tax Reimbursement Payment), the Company shall make anadditional Tax Reimbursement Payment in respect of such excess (plus any interest orpenalties payable with respect to such excess) once the amount of such excess is finallydetermined.               (iii) In the event of any controversy with the Internal Revenue Service (or othertaxing authority) under this Section 12, subject to subpart (i)(D) above, Executive shallpermit the Company to control issues related to this Section 12 (at its expense), providedthat such issues do not potentially materially adversely affect Executive, but Executiveshall control any other issues. In the event the issues are interrelated, Executive andthe Company shall in good faith cooperate so as not to jeopardize resolution of eitherissue, but if the parties cannot agree Executive shall make the final determination withregard to the issues. In the event of any conference with any taxing authority as to theExcise Tax or associated income taxes, Executive shall permit the representative of theCompany to accompany him and Executive and his representative shall cooperate with theCompany and its representative.               (iv) With regard to any initial filing for a refund or any other action requiredpursuant to this Section 12 (other than by mutual agreement) or, if not required, agreed toby the Company and Executive, the Executive shall cooperate fully with the Company,provided that the foregoing shall not apply to actions that are provided herein to be atthe sole discretion of Executive.
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          (a) The Tax Reimbursement Payment, or any portion thereof, payable by the Company shall bepaid not later than the fifth (5th) day following the determination by the Accountant and anypayment made after such fifth (5th) day shall bear interest at the rate provided in Code Section1274(b)(2)(B). The Company shall use its best efforts to cause the Accountant, to promptly deliverthe initial determination required hereunder and, if not delivered, within ninety (90) days afterthe change in ownership event covered by Section 280G(b)(2) of the Code, the Company shall payExecutive the Tax Reimbursement Payment set forth in an opinion from counsel recognized asknowledgeable in the relevant areas selected by Executive, and reasonably acceptable to theCompany, within five (5) days after delivery of such opinion. The amount of such payment shall besubject to later adjustment in accordance with the determination of the Accountant as providedherein.          (b) The Company shall be responsible for all charges of the Accountant and if (e) isapplicable the reasonable charges for the opinion given by Executive’s counsel.The Company and Executive shall mutually agree on and promulgate further guidelines in accordancewith this Section 12 to the extent, if any, necessary to effect the reversal of excessive orshortfall Tax Reimbursement Payments. The foregoing shall not in any way be inconsistent withSection l2(d)(i)(D) hereof.     13. Legal and Other Fees and Expenses. In the event that a claim for payment orbenefits under this Agreement is disputed, the Company shall pay all reasonable attorney,accountant and other professional fees and reasonable expenses incurred by
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Executive in pursuing such claim, provided Executive is successful with regard to a materialportion of his claim.     14. Miscellaneous.          (a) Governing Law. This Agreement shall be governed by and construed in accordancewith the laws of the State of Florida without reference to principles of conflict of laws.          (b) Entire Agreement/Amendments. This Agreement and the instruments contemplatedherein contain the entire understanding of the parties with respect to the employment of Executiveby the Company from and after the Commencement Date and supersedes any prior agreements between theCompany and Executive with respect thereto. There are no restrictions, agreements, promises,warranties, covenants or undertakings between the parties with respect to the subject matter hereinother than those expressly set forth herein and therein. This Agreement may not be altered,modified, or amended except by written instrument signed by the parties hereto.          (c) No Waiver. The failure of a party to insist upon strict adherence to any term ofthis Agreement on any occasion shall not be considered a waiver of such party’s rights or deprivesuch party of the right thereafter to insist upon strict adherence to that term or any other termof this Agreement. Any such waiver must be in writing and signed by Executive or an authorizedofficer of the Company, as the case may be.          (d) Assignment. This Agreement shall not be assignable by Executive. This Agreementshall be assignable by the Company only to an entity which is owned, directly or indirectly, inwhole or in part by the Company or by any successor
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to the Company or an acquirer of all or substantial all of the assets of the Company, providedsuch entity or acquirer promptly assumes all of the obligations hereunder of the Company in awriting delivered to Executive and otherwise complies with the provisions hereof with regard tosuch assumption. Upon such assignment and assumption, all references to the Company herein shallbe to the assignee entity or acquirer, as the case may be.          (e) Successors; Binding Agreement; Third Party Beneficiaries. This Agreement shallinure to the benefit of and be binding upon the personal or legal representatives, executors,administrators, successors, heirs, distributees, devisees legatees and permitted assignees of theparties hereto. In the event of the Executive’s death while receiving amounts payable pursuant toSection 8(b) hereof, any remaining amounts shall be paid to Executive’s estate.          (f) Communications. For the purpose of this Agreement, notices and all othercommunications provided for in this Agreement shall be in writing and shall be deemed to have beenduly given (i) when faxed or delivered, or (ii) two (2) business days after being mailed by UnitedStates registered or certified mail, return receipt requested, postage prepaid, addressed to therespective addresses set forth on the final page of this Agreement, provided that all notices tothe Company shall be directed to the attention of the General Counsel, or to such other address asany party may have furnished to the other in writing in accordance herewith. Notice of change ofaddress shall be effective only upon receipt.          (g) Withholding Taxes. The Company may withhold from any and all amounts payableunder this Agreement such Federal, state and local taxes, and any otherwithholdings, as may be required to be withheld pursuant to any applicable law or regulation.
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          (h) Survivorship. The respective rights and obligations of the parties hereunder,including without limitation Section 11 hereof, shall survive any termination of Executive’semployment to the extent necessary to the agreed preservation of such rights and obligations.          (i) Counterparts. This Agreement may be signed in counterparts, each of which shallbe an original, with the same effect as if the signatures thereto and hereto were upon the sameinstrument.          (j) Headings. The headings of the sections contained in this Agreement are forconvenience only and shall not be deemed to control or affect the meaning or construction of anyprovision of this Agreement.          (k) Executive’s Representation. Executive represents and warrants to the Company thatthere is no legal impediment to him entering into, or performing his obligations under thisAgreement and neither entering into this Agreement nor performing his service hereunder willviolate any agreement to which he is a party or any other legal restriction. Executive furtherrepresents and warrants that in performing his duties hereunder he will not use or disclose anyconfidential information of any prior employer or other person or entity.
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     IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day andyear first above written.      Jacuzzi Brands, Inc.