EX-10.3








EXHIBIT 10.3




CHANGE IN CONTROL AGREEMENT




This CHANGE IN CONTROL AGREEMENT (this “Agreement”), is made as of December 8, 2004, by and
between by and between, Jacuzzi Brands, Inc., a Delaware corporation, with its principal office at
Phillips Point – West Tower, 777 South Flagler Drive, Suite 1108, West Palm Beach, Florida 33401
(the “Company”), and Donald C. Devine (“Executive”).



WITNESSETH:




WHEREAS, Executive is currently employed by the Company as President and Chief Operating
Officer;



WHEREAS, the Company believes it to be in the best interest of the Company and its
shareholders to assure that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change in Control (as defined in Section
1 below); and



WHEREAS, the Company believes it is imperative to diminish the distraction of the Executive by
virtue of the personal uncertainties and risks created by a pending or threatened Change in
Control.



NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the parties agree as follows:




1. Definitions.




a. “Accrued Benefits” means any amounts or benefits owing to Executive under the then
applicable employee benefit plans, practices, programs or policies of the Company and any
long term incentive or equity plans of the Company.




b. “Accrued Obligations” means any base salary earned but unpaid, any accrued but
unused vacation pay payable pursuant to the Company’s policies, any earned or declared
annual bonus for any complete fiscal year which has not then been paid, and any unreimbursed
business expenses payable pursuant to the Company’s policies.




c. “Act” means the Securities Exchange Act of 1934, as amended from time to time.




d. “Board” means the board of directors of the Company.




e. “Cause” means (i) Executive’s refusal or willful failure to perform Executive’s
duties; (ii) Executive’s willful misconduct or gross negligence with regard to the Company
or its affiliates or their business, assets or employees (including, without limitation,
Executive’s fraud, embezzlement or other act of dishonesty with regard to the Company or its
affiliates); (iii) Executive’s willful misconduct which has a material adverse impact on the
Company or its affiliates, whether economic, or reputation wise or otherwise, as determined
by the Board; (iv) Executive’s conviction of, or pleading nolo contendere to, a felony or
any crime involving fraud, dishonesty or moral turpitude; (v) Executive’s refusal or willful
failure to follow the lawful written direction of the Board; or (vi) Executive’s breach of a
fiduciary duty owed to the Company or its affiliates.




f. “Change in Control” means the occurrence of any of the following (i) any “person” as
such term is used in Sections 13(d) and 14(d) of the Act (other than the Company, any
trustee or other fiduciary holding securities under any employee benefit plan of the
Company, or any company owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of Common Stock of the Company), is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or
indirectly, of securities of the Company representing twenty-five percent (25%) or more of
the combined voting power of the Company’s then outstanding securities; (ii) during any
period of two (2) consecutive years, individuals who at the beginning of such period
constitute the Board, and any new director (other than a director designated by a person who
has entered into an agreement with the Company to effect a transaction described in clause
(i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the two-year
period or whose election or nomination for election was previously so approved, cease for
any reason to constitute at least a majority of the Board; (iii) a merger or consolidation
of the Company with any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the combined voting
power of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; provided, however, that a merger or
consolidation effected to implement a recapitalization of the Company (or similar
transaction) in which no person acquires more than twenty-five percent (25%) of the combined
voting power of the Company’s then outstanding securities shall not constitute a Change in
Control of the Company; or (iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or the consummation of the sale or disposition by the Company of
all or substantially all of the Company’s assets other than (x) the sale or disposition of
all or substantially all of the assets of the Company to a person or persons who
beneficially own, directly or indirectly, at least fifty percent (50%) or more of the
combined voting power of the outstanding voting securities of the Company at the time of the
sale or (y) pursuant to a spinoff type transaction, directly or indirectly, of such assets
to the stockholders of the Company. Notwithstanding the foregoing, in no event shall a
Change in Control be deemed to have occurred, with respect to the Executive, if the
Executive is part of a purchasing group which consummates a transaction causing a Change in
Control. The Executive shall be deemed “part of a purchasing group” for purposes of the
preceding sentence if the Executive is a direct or indirect equity participant in the
purchasing company or group.




g. “Code” means the Internal Revenue Code of 1986, as amended.




h. “Common Stock” means the common stock, par value $.01 per share, of the Company.




i. “Date of Termination” means (i) if the Executive’s employment is terminated by the
Company for Cause, or by the Executive for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case may be, (ii) if the Executive’s
employment is terminated by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notified the Executive of such
termination and (iii) if the Executive’s employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death or the date that is 30 days
after receipt by the Executive or Executive’s legal representative of a Notice of
Termination for Disability, as the case may be.




j. “Disability” means the Executive (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less
than 12 months, or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan covering employees of the
participant’s employer.




k. “Good Reason” means the occurrence of any of the following circumstances: (i) any
material demotion of Executive on or after the Change in Control from Executive’s position
as President or Chief Operating Officer; or if Executive is subsequently promoted to Chief
Executive Officer, then any demotion of Executive from the position of President or Chief
Executive Officer thereafter (without regard to the position of Chief Operating Officer);
(ii) a failure by the Company to pay Executive’s base salary in accordance with the
Company’s payroll practices in effect immediately prior to the Change in Control, or if more
favorable the Company’s payroll practices in effect after the Change in Control; (iii) if
Executive is then based at the Company’s principal executive office, a relocation of the
Company’s principal executive office to a location more than both thirty-five (35) miles
from Executive’s residence at the time of the relocation or a relocation of Executive from
the principal executive office; or (iv) any reduction in the Executive’s base salary or
annual target bonus.




l. “Highest Base Salary” means the greater of (i) the Executive’s annual base salary
for the calendar year immediately preceding the calendar year in which the Change in Control
occurs, or (ii) the Executive’s annual base salary as in effect at the time of a Pre-October
2005 Change in Control or the Executive’s annual base salary as in effect at the time of
termination in the event of a Post-October 2005 Change in Control.




m. “Highest Bonus” means the greater of (i) the Executive’s target bonus in the fiscal
year immediately preceding the date in which the Change in Control occurs, or (ii) the
Executive’s target bonus for the fiscal year in which a Pre-October 2005 Change in Control
occurs or the Executive’s target bonus for the fiscal year in which the termination occurs
in the event of a Post-October 2005 Change in Control.




n. “Notice of Termination” means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated and (iii) if the
Date of Termination is other than the date of receipt of such notice, specified the
termination date (which date shall be not more than thirty days after the giving of such
notice).




o. “Pre-October 2005 Change in Control” means any Change in Control which occurs before
October 2, 2005.




p. “Post-October 2005 Change in Control” means any Change in Control which occurs on or
after October 2, 2005.




q. “Welfare Benefits” means all benefits under welfare benefit plans, practices,
policies and programs provided by the Company and its affiliated companies (including,
without limitation, medical, prescription, dental, disability, employee life, group life,
accidental death and travel accident insurance plans and programs) to the extent applicable
generally to other peer executives of the Company and its affiliated companies.



2. Termination During the Two Year Period Following a Change in Control. Subject to
the provisions of Section 3, the termination of Executive’s employment during the two (2) year
period following a Change in Control shall be governed by the provisions of this Section.




a. Without Cause, For Good Reason, Death or Disability. If during the two (2)
year period following a Change in Control, the Company terminates the Executive’s employment
without Cause, the Executive terminates employment for Good Reason, or Executive’s
employment terminates as a result of a Disability or the Executive’ death, the Executive or
Executive’s estate (whichever is applicable) shall be entitled to receive (A) Accrued
Obligations; (B) a lump sum amount equal to the sum of (i) three multiplied by the
Executive’s Highest Base Salary, plus (ii) three multiplied by the Executive’s Highest
Bonus, plus (iii) the Tax Reimbursement Payment payable in accordance with Section 4 below,
if any; (C) Accrued Benefits, which shall be paid in accordance with the terms of the
applicable plans, practices, programs or policies; (D) three years additional service and
compensation credit (at the Executive’s then compensation level) for pension purposes under
any defined benefit type qualified or nonqualified pension plan or arrangement of the
Company (a “Pension Plan”), which payments shall be made through and in accordance with the
terms of the nonqualified defined benefit pension arrangement if any then exists, or, if
not, in an actuarially equivalent lump sum (using the actuarial factors then applying in the
Company’s defined benefit plan covering the Executive); provided, however, that if any
Pension Plan maintained by the Company immediately prior to a Change in Control is
terminated on or after the Change in Control and before the date the Executive’s employment
terminates, then the amount payable under clause B above shall be increased by amount equal
to the excess of (x) the amount the Executive would be entitled to receive pursuant to the
terms of the terminated plan if the plan had not been terminated and the Executive had
received additional service and compensation credit pursuant to the provisions of this
clause (D) and (y) benefits the Executive received or will receive pursuant to the
terminated plan; (E) an amount equal to three multiplied by the maximum annual Company
contribution then in effect at the time of a Change in Control under any type of qualified
or nonqualified 401(k) plan (assuming Executive deferred the maximum amount and earns his
then current salary); (F) for three year period after the Termination’s Date or such longer
period as may be provided by the terms of the appropriate plan, program, practice or policy,
the Company shall continue to provide Welfare Benefits to the Executive and/or the
Executive’s family at least equal to those which would have been provided to them in
accordance with such plans, programs, practices and policies; and (G) accelerated vesting of
all equity compensation under any equity based compensation plans, programs or policies of
the Company. Payments under (F) above may at the discretion of the Company be made by
continuing participation of Executive in the Welfare Benefits as a terminee, by paying the
applicable COBRA premium for Executive and his dependents, or by covering Executive and his
dependents under substitute arrangements.




b. With Cause or Without Good Reason. If during the two (2) year period
following a Change in Control (i) the Company terminates the Executives employment for
Cause, or (ii) the Executive terminates employment without Good Reason, the Executive shall
be entitled to receive (A) the Accrued Obligations, and (B) the Accrued Benefits which shall
be paid in accordance with the terms of the applicable plans, practices, programs, or
policies.



3. Termination During the First or Seventh Month Following a Change in Control. If
the Executive’s employment terminates for any reason (including, but not limited to a termination
for Cause, Good Reason, without Good Reason, Death or Disability) during (i) the thirty (30) day
period beginning on the date a Pre-October 2005 Change in Control occurs and ending thirty (30)
days thereafter, or (ii) the thirty (30) day period beginning on the date that occurs six (6)
months after a Post-October 2005 Change in Control and ending thirty (30) days thereafter, or, then
the Executive shall be entitled to receive (A) Accrued Obligations; (B) a lump sum amount equal to
the sum of (i) three multiplied by the Executive’s Highest Base Salary, plus (ii) three multiplied
by the Executive’s Highest Bonus, plus (iii) the Tax Reimbursement Payment payable in accordance
with Section 4 below, if any; (C) Accrued Benefits, which shall be paid in accordance with the
terms of the applicable plans, practices, programs or policies; (D) three years additional service
and compensation credit (at the Executive’s then compensation level) for pension purposes under any
Pension Plan, which payments shall be made through and in accordance with the terms of the
nonqualified defined benefit pension arrangement if any then exists, or, if not, in an actuarially
equivalent lump sum (using the actuarial factors then applying in the Company’s defined benefit
plan covering the Executive); provided, however, that if any Pension Plan maintained by the Company
immediately prior to a Change in Control is terminated on or after the Change in Control and before
the date the Executive’s employment terminates, then the amount payable under clause B above shall
be increased by amount equal to the excess of (x) the amount the Executive would be entitled to
receive pursuant to the terms of the terminated plan if the plan had not been terminated and the
Executive had received additional service and compensation credit pursuant to the provisions of
this clause (D) and (y) benefits the Executive received or will receive pursuant to the terminated
plan; (E) an amount equal to three multiplied by the maximum annual Company contribution then in
effect at the time of a Change in Control under any type of qualified or nonqualified 401(k) plan
(assuming Executive deferred the maximum amount and earns his then current salary); (F) for three
year period after the Termination’s Date or such longer period as may be provided by the terms of
the appropriate plan, program, practice or policy, the Company shall continue to provide Welfare
Benefits to the Executive and/or the Executive’s family at least equal to those which would have
been provided to them in accordance with such plans, programs, practices and policies; and (G)
accelerated vesting of all equity compensation under any equity based compensation plans, programs
or policies of the Company. Payments under (F) above may at the discretion of the Company be made
by continuing participation of Executive in the Welfare Benefits as a terminee, by paying the
applicable COBRA premium for Executive and his dependents, or by covering Executive and his
dependents under substitute arrangements.




4. Special Tax Provision. 




a. In the event that any amount or benefit paid, payable, or to be paid, or
distributed, distributable, or to be distributed to or with respect to Executive by the
Company (whether pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company) as a result of a Change in Control (collectively, the “Covered
Payments”) is or becomes subject to the excise tax imposed by or under Section 4999 of the
Code (or any similar tax that may hereafter be imposed), and/or any interest or penalties
with respect to such excise tax (such excise tax, together with such interest and penalties,
is hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to
Executive an additional amount (the “Tax Reimbursement Payment”) such that after payment by
Executive of all taxes (including, without limitation, any interest or penalties and any
Excise Tax and other taxes imposed on or attributable to the Tax Reimbursement Payment
itself), Executive retains an amount of the Tax Reimbursement Payment equal to the sum of
(i) the amount of the Excise Tax imposed upon the Covered Payments, and (ii) without
duplication, an amount equal to the product of (A) any deductions disallowed for federal,
state or local income or payroll tax purposes because of the inclusion of the tax
Reimbursement Payment in Executive’s adjusted gross income, and (B) the highest applicable
marginal rate of federal, state or local income taxation, respectively, for the calendar
year in which the Tax Reimbursement Payment is made or is to be made. The intent of this
Section is that (a) the Executive, after paying his Federal, state and local income tax and
any payroll taxes on Executive, will be in the same position as if he was not subject to the
Excise Tax under Section 4999 of the Code and did not receive the extra payments pursuant to
this Section and (b) that Executive should never be “out-of-pocket” with respect to any tax
or other amount subject to this Section, whether payable to any taxing authority or
repayable to the Company, and this Section shall be interpreted accordingly.
Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a
Tax Reimbursement Payment, but that the Covered Payment does not exceed 110% of the greatest
amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of
the Covered Payment would not give rise to any Excise Tax, then no Tax Reimbursement Payment
shall be made to the Executive and the Covered Payment, in the aggregate, shall be reduced
to the Reduced Amount.




b. Except as otherwise provided in clause (a) above, for purposes of determining
whether any of the 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
meaning of Section 280G(b)(2) of the Code) and such payments in excess of the Code
Section 280G(b)(3) “base amount” shall be treated as subject to the Excise Tax,
unless, and except to the extent that, the Company’s independent certified public
accountants appointed prior to the Change in Control covered by Code Section
280G(b)(2) or legal counsel (reasonably acceptable to Executive) appointed by such
public accountants (or, if the public accountants decline such appointment and
decline appointing such legal counsel, such independent certified public accountants
as promptly mutually agreed on in good faith by the Company and the Executive) (the
“Accountant”), deliver a written opinion to Executive, reasonably satisfactory to
Executive’s legal counsel, that Executive has a reasonable basis to claim that the
Covered Payments (in whole or in part) (A) do not constitute “parachute payments”,
(B) represent reasonable compensation for services actually rendered (within the
meaning of Section 280G(b)(4) of the Code) in excess of the “base amount” allocable
to such reasonable compensation, or (C) such “parachute payments” are otherwise not
subject to such Excise Tax (with appropriate legal authority, detailed analysis and
explanation provided therein by the Accountants); and




ii. the value of any Covered Payments which are non-cash benefits or deferred
payments or benefits shall be determined by the Accountant in accordance with the
principles of Section 280G of the Code.




c. For purposes of determining the amount of the Tax Reimbursement Payment, Executive
shall be deemed:




i. to pay federal, state, local income and/or payroll taxes at the highest
applicable marginal rate of taxation for the calendar year in which the Tax
Reimbursement Payment is made or is to be made, and




ii. to have otherwise allowable deductions for federal, state and local income
and payroll tax purposes at least equal to those disallowed due to the inclusion of
the Tax Reimbursement Payment in Executive’s adjusted gross income.




d. In the event that prior to the time Executive has filed any of his tax returns for
the calendar year in which the Change in Control occurred, the Accountant determines, for
any reason whatever, the correct amount of the Tax Reimbursement Payment to be less than the
amount determined at the time the Tax Reimbursement Payment was made, the Executive shall
repay to the Company, at the time that the amount of such reduction in Tax Reimbursement
Payment is determined by the Accountant, the portion of the prior Tax Reimbursement Payment
attributable to such reduction (including the portion of the Tax Reimbursement Payment
attributable to the Excise Tax and federal, state and local income and payroll tax imposed
on the portion of the Tax Reimbursement Payment being repaid by Executive, using the
assumptions and methodology utilized to calculate the Tax Reimbursement Payment (unless
manifestly erroneous)).




e. In the event that the determination set forth in (d) above is made by the Accountant
after the filing by Executive of any of his tax returns for the calendar year in which the
Change in Control occurred, but prior to one (1) year after the occurrence of such Change in
Control, Executive shall file at the request of the Company an amended tax return in
accordance with the Accountant’s determination, but no portion of the Tax Reimbursement
Payment shall be required to be refunded to the Company until actual refund or credit of
such portion has been made to Executive, and the Executive shall pay interest to the Company
which shall not exceed the interest received or credited to Executive by such tax authority
for the period it held such portion (less any tax Executive must pay on such interest and
which he is unable to deduct as a result of payment of the refund).




f. In the event Executive receives a refund pursuant to (e) above and repays such
amount to the Company, Executive shall thereafter file for refunds or credits by reason of
the repayments to the Company.




g. Executive and the Company shall mutually agree upon the course of action, if any, to
be pursued (which shall be at the expense of the Company) if Executive’s claim for refund or
credit is denied.




h. In the event that the Excise Tax is later determined by the Accountants or the
Internal Revenue Service to exceed the amount taken into account hereunder at the time the
Tax Reimbursement Payment is made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Tax Reimbursement Payment), the
Company shall make an additional Tax Reimbursement Payment in respect of such excess (plus
any interest or penalties payable with respect to such excess) once the amount of such
excess is finally determined.




i. In the event of any controversy with the Internal Revenue Service (or other taxing
authority) under this Section, subject to (g) above, Executive shall permit the Company to
control issues related to this Section (at its expense), provided that such issues do not
potentially materially adversely affect Executive, but Executive shall control any other
issues. In the event the issues are interrelated, Executive and the Company shall in good
faith cooperate so as not to jeopardize resolution of either issue, but if the parties
cannot agree Executive shall make the final determination with regard to the issues. In the
event of any conference with any taxing authority as to the Excise Tax or associated income
taxes, Executive shall permit the representative of the Company to accompany him and
Executive and his representative shall cooperate with the Company and its representative.




j. With regard to any initial filing for a refund or any other action required pursuant
to this Section (other than by mutual agreement) or, if not required, agreed to by 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 at the sole
discretion of Executive.




k. The Tax Reimbursement Payment, or any portion thereof, payable by the Company shall
be paid not later than the fifth (5th) day following the determination by the Accountant and
any payment made after such fifth (5th) day shall bear interest at the rate provided in Code
Section 1274(b)(2)(B). The Company shall use its best efforts to cause the Accountant, to
promptly deliver the initial determination required hereunder and, if not delivered, within
ninety (90) days after the Change in Control, the Company shall pay Executive the Tax
Reimbursement Payment set forth in an opinion from counsel recognized as knowledgeable in
the relevant areas selected by Executive, and reasonably acceptable to the Company, within
five (5) days after delivery of such opinion. The amount of such payment shall be subject
to later adjustment in accordance with the determination of the Accountant as provided
herein.




l. The Company shall be responsible for all charges of the Accountant and if (e) is
applicable the reasonable charges for the opinion given by Executive’s counsel.




m. The Company and Executive shall mutually agree on and promulgate further guidelines
in accordance with this Section to the extent, if any, necessary to effect the reversal of
excessive or shortfall Tax Reimbursement Payments. The foregoing shall not in any way be
inconsistent with sub-paragraph (g) above.




5. Confidential Information, Non-Competition and Non-Solicitation of the Company.




a. Executive acknowledges that as a result of Executive’s employment by the Company,
Executive will obtain secret and confidential information as to the Company and its
affiliates and create relationships with customers, suppliers and other persons dealing with
the Company and its affiliates and the Company and its affiliates will suffer substantial
damage, which would be difficult to ascertain, if Executive should use such confidential
information or take advantage of such relationship and that because of the nature of the
information that will be known to Executive and the relationships created it is necessary
for the Company and its affiliates to be protected by the prohibition against Competition as
set forth herein, as well as the confidentiality restrictions set forth herein.




b. Executive acknowledges that the retention of nonclerical employees employed by the
Company and its affiliates in which the Company and its affiliates have invested training
and depends on for the operation of their businesses is important to the businesses of the
Company and its affiliates, that Executive will obtain unique information as to such
employees as an executive of the Company and will develop a unique relationship with such
persons as a result of being an executive of the Company and, therefore, it is necessary for
the Company and its affiliates to be protected from Executive’s Solicitation of such
employees as set forth below.




c. Executive acknowledges that the provisions of this Agreement are reasonable and
necessary for the protection of the businesses of the Company and its affiliates and that
part of the compensation paid under this Agreement and the agreement to pay severance in
certain instances is in consideration for the agreements in this Section.




d. “Competition” means participating, directly or indirectly, as an individual
proprietor, partners, stockholder, officer, employee, director, joint venturer, investor,
lender, consultant or in any capacity whatsoever (within the United States of America, or in
any country where the Company or its affiliates do business) in a business in meaningful
competition with the Company’s businesses, provided, however, that such participation shall
not include (i) the mere ownership of not 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
or employees of the Company or its affiliates to terminate their employment with, or
otherwise cease their relationship with, the Company or its affiliates or hiring or
assisting another person or entity to hire any nonclerical employee of the Company or its
affiliates or any person who within six (6) months before had been a nonclerical employee of
the Company or its affiliates and were recruited 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 in with the prior written approval of the
Board.




f. If any restriction set forth with regard to Competition or Solicitation is found by
any court of competent jurisdiction, or an arbitrator, to be unenforceable because it
extends for too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend over the maximum period of time,
range of activities or geographic area as to which it may be enforceable. If any provision
of this Section shall be declared to be invalid or unenforceable, in whole or in part, as a
result of the foregoing, as a result of public policy or for any other reason, such
invalidity shall not affect the remaining provisions of this Section which shall remain in
full force and effect.




g. During and after employment with the Company, Executive shall hold in a fiduciary
capacity for the benefit of the Company and its affiliates all secret or confidential
information, knowledge or data relating to the Company and its affiliates, and their
respective businesses, including any confidential information as to customers of the Company
and its affiliates, (i) obtained by Executive during Executive’s employment by the Company
and its affiliates and (ii) not otherwise public knowledge or known within the applicable
industry. Executive shall not, without prior written consent of the Company, unless
compelled pursuant to the order of a court or other governmental or legal 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 event Executive is
compelled by order of a court or other governmental or legal body to communicate or divulge
any such information, knowledge or data to anyone other than the foregoing, Executive shall
promptly notify the Company of any such order and Executive shall cooperate fully with the
Company in protecting such information to the extent possible under applicable law.




h. Upon termination of Executive’s employment with the Company and its affiliates, or
at any time as the Company may request, Executive shall promptly deliver to the Company, as
requested, all documents (whether prepared by the Company, an affiliate, Executive or a
third party) relating to the Company, an affiliate or any of their businesses or property
which Executive may possess or have under Executive’s direction or control other than
documents provided to Executive in Executive’s capacity as a participant in any employee
benefit plan, policy or program of the Company or any agreement by and between Executive and
the Company with regard to Executive’s employment or severance.




i. During the period the Executive is employed by the Company and for two (2) years
following a termination of Executive’s employment for any reason whatsoever, Executive shall
not engage in Solicitation, 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, Executive acknowledges
that the Company and its affiliates will be caused irreparable injury and that money damages
may not be an adequate remedy and agree that the Company and its affiliates shall be
entitled to injunctive relief (in addition to its other remedies at law) to have the
provisions of this Section enforced. It is hereby acknowledged that the provisions of this
Section are for the benefit of the Company and all of the affiliates of the Company and each
such entity may enforce the provisions of this Section and only the applicable entity can
waive the rights hereunder with respect to its confidential information and employees.




k. In the event of breach, as adjudicated by a court of competent jurisdiction, of this
Section by Executive, while Executive is receiving amounts under this Agreement, (i)
Executive shall not be entitled to receive any future amounts pursuant to this Agreement,
and (ii) Executive shall be obligated to return to the Company, within 10 days of such
adjudication, all amounts paid by the Company pursuant to this Agreement on or after the
date of the breach.




l. Executive specifically agrees that the restrictive covenants and other provisions of
this Section 5 shall be enforceable by the Company’s successors and/or assigns.



6. Notice of Termination. Any termination by the Company for Cause or for a
Disability, or by the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 11(f) of this Agreement. The failure by
the Executive or the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive
or the Company, respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights
hereunder.



7. Payment. Any amount due to Executive under this Agreement shall be paid in lump
sum in cash within ten days after the date of termination.



8. Release. Executive agrees that, as a condition to receiving the payments and
benefits provided hereunder (with the exception of the Accrued Obligations and Accrued Benefits
outlined in paragraph 2(b) above) he will execute, deliver and not revoke (within the time period
permitted 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 form
being used by the Company for senior executives (but without release of the right of
indemnification hereunder or under the Company’s By-laws or rights under benefit or equity plans
that by their terms are intended to survive termination of his employment).



9. Full Settlement. Any amounts due, with the exception of the Accrued Obligations
and Accrued Benefits outlined in paragraph 2(b) above, under this Agreement are in the nature of
severance payments and are not in the nature of a penalty. Such amounts are inclusive, and in lieu
of any, amounts payable under any other salary continuation or cash severance arrangement of the
Company and to the extent paid or provided under any other such arrangement shall be offset from
the amount due hereunder. The Company’s obligation to make payments provided for in this Agreement
and otherwise perform its obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other employment or to
take any action by way of mitigation of the amounts payable to the Executive under any provision of
this Agreement and such amounts shall not be reduced whether or not the Executive obtains other
employment.



10. Legal and Other Fees and Expenses. In the event that a claim for payment or
benefits under this Agreement is disputed, the Company shall pay all reasonable attorney,
accountant and other professional fees and reasonable expenses incurred by Executive in pursuing
such claim, provided Executive is successful with regard to a material portion of his claim.



11. Section 409A. The Company represents and warrants it will amend each
Non-qualified Deferred Compensation Plan (as defined below) and this Agreement so that they will
conform with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) in such a
manner that the Executive should not incur any interest or additional tax under Code Section
409A(a)(1)(B) or acceleration of gross income inclusion (collectively the “409A Tax”) with respect
to any benefits the Executive is entitled to under such plans; provided, however, that to the
extent deemed necessary by the Company, the Company may terminate any further participation by
employees in any Non-qualified Deferred Compensation Plan and adopt a new plan which provides
substantially similar benefits (a “Substitute Plan”), subject to any limitation on benefits
required so that the Substitute Plan conforms with Code Section 409A and the Executive does not
incur the 409A Tax. The parties shall take all additional steps necessary so that the Executive
will not incur the 409A Tax with respect to amounts the Executive is entitled to under the
Non-qualified Retirement Plans, any Substitute Plan or this Agreement. For purposes of this
Section a “Non-qualified Deferred Compensation Plan” means any “non-qualified deferred compensation
plan” (as defined in Code Section 409A(d)) which is maintained by the Company or an affiliate of
the Company and in which the Executive participates as of the date hereof. In the event any
amounts due under this Agreement are payable from a Non-qualified Deferred Compensation Plan as a
result of Executive’s separation from service pursuant to Section 409A(a)(2)(A)(i) of the Code and
any Treasury regulations promulgated thereunder, such amounts shall be delayed for a period of six
months from the date of such separation from service or be subject to such other restrictions under
Section 409A of the Code so as to avoid any 409A Tax.




12. Miscellaneous.




a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without reference to principles of conflict
of laws.




b. Entire Agreement/Amendments. In the event of a Change in Control, this
Agreement supersedes (i) all severance and termination payments and benefits under any
agreements entered into between the Executive and the Company on or prior to the date hereof
(“Other Agreement”), (ii) all severance plans or policies of the Company, and (ii) all
confidentiality, non-compete and non-solicitation provisions under any agreements entered
into by and between the Executive and the Company prior to the date hereof. This Agreement
does not affect any deferred compensation agreements, non-qualified retirement plans, or any
other agreements entered into by the parties. For the avoidance of doubt, Executive shall
not be entitled to any payments of benefits under any Other Agreement if the Executive
receives payments or benefits under this Agreement (other than the excise tax-gross up
provided for in Section 8 of this Agreement). There are no restrictions, agreements,
promises, warranties, covenants or undertakings between the parties with respect to the
subject matter herein other 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 of this Agreement on any occasion shall not be considered a waiver of such party’s
rights or deprive such party of the right thereafter to insist upon strict adherence to that
term or any other term of this Agreement. Any such waiver must be in writing and signed by
Executive or an authorized officer of the Company, as the case may be.




d. Assignment. This Agreement shall not be assignable by Executive. This
Agreement shall be assignable by the Company only to an entity which is owned, directly or
indirectly, in whole or in part by the Company or by any successor to the Company or an
acquirer of all or substantial all of the assets of the Company or all or substantially all
of the assets of a group of subsidiaries and divisions of the Company, provided such entity
or acquirer promptly assumes all of the obligations hereunder of the Company in a writing
delivered to Executive and otherwise complies with the provisions hereof with regard to such
assumption. Upon such assignment and assumption, all references to the Company herein shall
be to the assignee entity or acquirer, as the case may be.




e. Successors; Binding Agreement; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, legatees and permitted
assignees of the parties hereto. In the event of the Executive’s death while receiving
amounts payable pursuant to this Agreement, any remaining amounts shall be paid to
Executive’s estate.




f. Communications. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be deemed to
have been duly given (i) when faxed or delivered, or (ii) two (2) business days after being
mailed by United States registered or certified mail, return receipt requested, postage
prepaid, addressed to the respective addresses set forth on the initial page of this
Agreement, provided that all notices to the Company shall be directed to the attention of
the Secretary of the Company, or to such other address as any party may have furnished to
the other in writing in accordance herewith. Notice of change of address shall be effective
only upon receipt.




g. Withholding Taxes. The Company may withhold from any and all amounts
payable under this Agreement such Federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation.




h. Survivorship. The respective rights and obligations of the parties
hereunder, including without limitation Section 5 hereof, shall survive any termination of
Executive’s employment 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
shall be an original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.




j. Headings. The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or construction of
any provision of this Agreement.



IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.




JACUZZI BRANDS, INC.




By: David H. Clarke


Name:


Title: Chairman and CEO




EXECUTIVE




Donald C. Devine