Exhibit 10.1


 


SECOND
AMENDMENT TO 

AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS SECOND AMENDMENT to the Amended and Restated
Employment Agreement (the “Second Amendment”),
is dated December 30, 2008 (the “Effective Date”),
and is made by and between Helen of Troy Limited (the “Company”)
and Gerald J. Rubin (“Executive”).


 


W
I T N E S S E T H:


 


WHEREAS, the parties previously entered into
that certain Amended and Restated Employment Agreement, between Helen of Troy
Limited and Gerald J. Rubin, dated March 1, 1999 and amended pursuant that
certain letter dated April 15, 2005 (the “Employment
Agreement”);


 


WHEREAS, Section 11.5 of the Employment
Agreement provides that the Employment Agreement may be amended by a written
instrument executed by the Company and the Employee;


 


WHEREAS, Section 409A of the Internal
Revenue Code of 1986, as amended (“Section 409A”)
and Section 457A of the Internal Revenue Code of 1986, as amended (“Section 457A”), imposes certain
limitations and restrictions on the time at which certain types of compensation
may be payable;


 


WHEREAS, all documents that may provide for the
payment of compensation that may be subject to Section 409A or Section 457A
must be brought into compliance with the requirements of Section 409A and Section 457A
on or before December 31, 2008, or the service provider to whom such
compensation is payable will be subjected to certain adverse tax consequences,
including, but not limited to, having to pay an additional tax of at least 20%
on such compensation; and


 


WHEREAS, the Company and the Employee have
determined that it is advisable to amend the Employment Agreement in accordance
with Section 457A and the final regulations promulgated under Section 409A
to ensure that, to the extent subject to Section 409A or Section 457A,
the Employment Agreement complies therewith and to avoid the imposition of any
adverse tax consequences under Section 409A or Section 457A.


 


NOW, THEREFORE, the Employment Agreement shall be
amended as of the Effective Date as set forth below.  Capitalized terms used in this Second
Amendment but not otherwise defined in this Second Amendment shall have the
meaning set forth in the Employment Agreement.


 


1.             Section 2.5
of the Employment Agreement shall be deleted and shall be replaced in its entirety
with the following:


 


2.5           Election With Respect To Compensation.  By written notice to the Board or to the
Committee given by Executive prior to the last day of any calendar year during
the term hereof, Executive may, with respect to the calendar year or years
during the term hereof next succeeding the calendar year in which such notice
is given, elect thereby to defer payment to him of such portion of his Basic
Compensation for such succeeding year or years as may be designated by
Executive. Similarly, by written notice to the Board of Directors or to the
Committee given by Executive prior to the last day of any fiscal year during
the term hereof, Executive may, with respect to the fiscal year or years during
the term hereof next succeeding the fiscal year in which such notice is given,
elect thereby to defer payment to him of such portion of his incentive
compensation for such succeeding fiscal year or years as may be designated by
Executive which compensation has not at the date of giving such notice been
fully earned by, or allocated to, Executive. Any amounts so deferred by
Executive shall bear interest thereon (compounded annually at the end of each
calendar year) from the date on which the 


 

















 


deferred compensation is finally determined until paid at the published
prime rate charged by Chase Bank of Texas, National Association, El Paso, Texas
(determined with respect to each calendar year on the first business day of
such Bank during such calendar year) and shall be credited to a separate
bookkeeping account established and maintained on behalf of Executive by the
Company hereinafter called the “Deferred Compensation Account”. Executive’s
Deferred Compensation Account shall reflect his deferred compensation hereunder
and the interest, earnings and losses attributable thereto. Notwithstanding the
preceding, Executive may select one or more publicly traded mutual funds for
the deemed investment of all or any portion (in ten percent increments) of his
Deferred Compensation Account. Such selection, or any change thereof, shall be
made by written notice to the Committee, with a copy to the chief financial
officer of the Company, and shall be effective as of the first day of the next
succeeding month. Any investment selection timely and properly made by Executive
shall remain in effect until changed by Executive. Executive’s Deferred
Compensation Account balance shall be paid to Executive or, in the event of his
death, to his designated beneficiary, or if there is no such designation, to
Executive’s wife, if she is then living, or if not, to his estate, in
accordance with Executive’s election as to the time and form of payment made at
the time of the deferral election by written notice to the Board of Directors
or the Committee.  Any deferral election
under this Section 2.5, including any election to change the time and form
of payment previously elected, shall be made in accordance with Section 409A
of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
and other guidance promulgated thereunder (the “Deferred Compensation Rules”).
Executive’s right to his Deferred Compensation Account balance shall be
nonforfeitable and termination of his employment with the Company for any
reason whatsoever (including for Cause pursuant to Section 3.1(c)) or
Executive’s failure to comply with the provisions of Section 5 shall not
reduce his Deferred Compensation Account balance (as subsequently adjusted for
interest, earnings and losses attributable thereto) or alter the method and the
time for payment thereof or the persons to whom same shall be paid.


 


By written notice to Executive prior to the last day
of any calendar year during the term hereof, Company may, with respect to the
calendar year during the term hereof in which such notice is given, elect to
defer payment to Executive of such portion of his Basic Compensation or
incentive compensation as would, were it paid to Executive during the calendar
year in which such notice is given, cause the total compensation paid to
Executive during the calendar year to exceed the limits on compensation to
Executive deductible by the Company under Section 162(m) of the
Internal Revenue Code of 1986, as amended (“Code Section 162(m)”). Any
amount so deferred by Company shall bear interest from the date when it would
otherwise have been payable until paid at the published prime rate charged by
Chase Bank of Texas, National Association, El Paso, Texas, on the date such
amount would otherwise have been payable. Executive’s right to the amounts so
deferred shall be nonforfeitable as provided above in this Section with
respect to his Deferred Compensation Account. 
Any such deferred payment shall be made in a lump sum payment either (a) before
the end of the first calendar year in which the Company reasonably anticipates
that if payment is made during such year, the deduction of such payment would
not be barred by Code Section 162(m) or (b) within 10 days
following Executive’s “separation from service” (within the meaning of the
Deferred Compensation Rules, a “Separation from Service”); provided, however,
in the event Executive is a “specified employee” (within the meaning of the
Deferred Compensation Rules, a “Specified Employee”) as of the date of his
Separation from Service, such payment will be paid on the earlier to occur of
the Executive’s death or the first day of the seventh month following Executive’s
Separation from Service.


 


2.             References
to “six months” in Sections 4.1(a)(i) and 4.1(b)(i) will be revised
to refer to “two and one half months.”


 

















 


3.             Section 4.1(b)(vi) of
the Employment Agreement shall be deleted and shall be replaced in its entirety
with the following:


 


(vi)          The
Executive shall be entitled to continued participation in all employee benefit
plans, programs or arrangements available to Company executives in which
Executive was participating on the date of Executive’s Separation from Service
until the end of the fiscal year in which Executive’s Separation from Service
occurs.


 


4.             Section 4.1(d)(i) of
the Employment Agreement shall be deleted and shall be replaced in its entirety
with the following:


 


(i)            Payments,
each in an amount equal to the monthly rate of Basic Compensation then being
paid to Executive under this Agreement, which shall commence on the date of
Executive’s Separation from Service and shall continue until the date this
Agreement would have expired but for said occurrence (without regard to the
second sentence of Section 1.3);


 


5.             Section 4.1(d)(ii) of
the Employment Agreement shall be deleted and shall be replaced in its entirety
with the following:


 


(ii)           Payments,
payable annually within the 90 days following the close of each fiscal year of
the Company that ends during the period determined for the payments made under
clause (i) above, each in an amount equal to the highest annual incentive
compensation and bonus award made to Executive with respect to the Company’s
most recent three fiscal years ending prior to the date of Executive’s
Separation from Service;


 


6.             Section 4.1(d)(vi) of
the Employment Agreement shall be deleted and shall be replaced in its entirety
with the following:


 


(vi)          Continued
participation in all employee benefit plans, programs or arrangements available
to Company executives in which Executive was participating on the date of
Executive’s Separation from Service until the earlier of:


 


(A)          the
date this Agreement would have expired but for the occurrence of the date of
Executive’s Separation from Service, or


 


(B)           the
date, or dates, he receives equivalent coverage and benefits under the plans,
programs and arrangements of a subsequent employer (such coverages and benefits
to be determined on a coverage-by-coverage, or benefit-by-benefit, basis);


 


7.             New
Sections 11.15 and 11..16 shall be added to the Employment Agreement to read as
follows:


 


11.15       Timing of Payments and Compliance with Deferred
Compensation Rules.


 


(a)           Anything
herein to the contrary notwithstanding, any reimbursements, in-kind benefits or
tax gross-up payments provided hereunder shall be paid or provided in
accordance with the requirements of Treasury Regulation §§ 1.409A-3(i)(1)(iv) and
(v).


 


(b)           Anything
herein to the contrary notwithstanding, in the event Executive is a Specified
Employee as of the date of his Separation from Service, the amounts otherwise
payable pursuant to Sections 4.1(d)(i) and (ii) during the six month 


 

















 


period following Executive’s Separation from Service will be paid in a
single lump sum payment on the earlier to occur of the Executive’s death or the
first day of the seventh month following Executive’s Separation from Service.


 


(c)           Anything
herein to the contrary notwithstanding, in the event Executive is a Specified
Employee as of the date of his Separation from Service, premiums payable with
respect to any benefits made available pursuant to Sections 4.1(b)(v), (b)(vi),
(c)(ii), (d)(v) and (d)(vi) as applicable, will be paid by the
Executive during the six month period following Executive’s Separation from
Service and will be reimbursed by the Company in a single lump sum payment on
the earlier to occur of the Executive’s death or the first day of the seventh
month following Executive’s Separation from Service.


 


(d)           The
terms “terminate,” “termination,” “termination of employment,” and similar
terms used herein are intended to mean a termination of employment that constitutes
a Separation from Service.


 


(e)           Neither
the Company nor the Executive, individually or in combination, may accelerate
any payment or benefit that is subject to Code Section 409A, except in
compliance with Code Section 409A and the provisions of this Agreement,
and no amount shall be paid prior to the earliest date on which it may be paid
without violating Code Section 409A.


 


(f)            For
purposes of applying the provisions of Code Section 409A to this
Agreement, each separately identified amount to which the Executive is entitled
under this Agreement shall be treated as a separate payment.  In addition, to the extent permissible under
Code Section 409A, any series of installment payments under this Agreement
shall be treated as a right to a series of separate payments.


 


(g)           The
parties intend that this Agreement and the benefits provided hereunder be
interpreted and construed to comply with Code Section 409A to the extent
applicable thereto.


 


11.16       Compliance with Code Section 457A.


 


Notwithstanding
anything to the contrary in this Agreement, the following provisions shall
apply from and after January 1, 2009:


 


(a)           This Agreement and the benefits
provided hereunder are intended to comply, to the extent applicable thereto,
with Code Section 409A and the Treasury Regulations and other guidance
promulgated or issued thereunder and with Code Section 457A and the
Treasury Regulations and other guidance promulgated or issued thereunder, and
the provisions of this Agreement shall be interpreted and construed consistent
with this intent.  If the Executive or
the Company believes, at any time, that any such benefit or right does not so
comply with Code Section 457A, it shall promptly advise the other and
shall negotiate reasonably and in good faith to amend the terms of such
benefits and rights such that they comply with Code Section 457A (with the
most limited possible economic effect on the Executive and on the Company).


 


(b)           “Ineligible
Compensation” means compensation relating to services performed for the benefit
or on behalf of the Company as determined by HoT-Nevada in its sole discretion
regardless of whether the cost of such compensation is actually borne by the
Company.  To the extent the Executive
performs such services for the Company, as well as for HoT-Nevada, and any
subsidiary or affiliate of the Company, the determination of what portion of
such compensation shall be considered Ineligible Compensation shall also be
made by HoT-Nevada in its sole discretion.


 

















 


(c)           If and to
the extent required by Code Section 457A, and subject to Code Section 409A:


 


(i)            Any
Ineligible Compensation which is attributable to services performed for the
Company after December 31, 2008, as adjusted for any earnings and losses
attributable thereto, shall be paid to the Executive no later than the last day
of the twelfth month after the end of the taxable year of the Company during
which the right to the payment of such Ineligible Compensation is no longer
subject to a “substantial risk of forfeiture” within the meaning of Code Section 457A.


 


(ii)           In
the case of any deferred amount of Ineligible Compensation which is
attributable to services performed for the Company before January 1, 2009,
to the extent such deferred amount is not includible in the Executive’s gross
income in a taxable year beginning before 2018, such deferred amount, as
adjusted for any earnings and losses attributable thereto, shall be paid to the
Executive in the later of (1) the last taxable year beginning before 2018,
or (2) the taxable year in which there is no “substantial risk of
forfeiture” of the Executive’s rights to such Ineligible Compensation, within
the meaning of Code Section 457A.


 


NOW, THEREFORE, be it further provided that, except as
set forth above, the Agreement shall continue to read in its current state.


 


[Signature Page Follows]


 

















 


IN WITNESS WHEREOF, the parties have executed this Second
Amendment effective as of the Effective Date above.


 


 


	
   

  	
  HELEN OF TROY
  LIMITED

  
	
   

  	
  a
  Bermuda company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gary B. Abromovitz

  
	
   

  	
  Name:

  	
  Gary
  B. Abromovitz

  
	
   

  	
  Its:

  	
  Deputy
  Chairman of the Board

  
	
   

  	
   

  	
  Chair,
  Compensation Committee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gerald J. Rubin

  
	
   

  	
   

  	
  Gerald
  J. Rubin