<Page>
EXHIBIT 10.9
RESTATED MANAGEMENT AGREEMENT
THIS RESTATED MANAGEMENT AGREEMENT (the "AGREEMENT"), entered into
this 30th day of March, 2001, is effective as of January 1, 2001 (the "Effective
Date" hereof) and is entered into by and among United Industries Corporation, a
Delaware corporation (the "COMPANY"), Daniel Johnston ("EXECUTIVE"), and the
Trust established by that certain Trust Agreement dated as of January 20, 1999
(the "Trust") by and between the Company and Stephen R. Brian, as original
trustee. Subsequent to the execution of the 1999 Agreement, Stephen R. Brian was
replaced as trustee of the Trust by Matthew M. McCarthy ("Successor Trustee").
The Company and Executive desire to enter into this Agreement relating
to Executive's employment by the Company. The Agreement restates the Management
Agreement (the "1999 Agreement") dated as of January 20, 1999 (the date thereof
having been erroneously recited in the first paragraph of the 1999 Agreement as
January 20, 1998) and incorporates into the Agreement all additions, deletions
and modifications which have been agreed to between the parties as of the
Effective Date hereof. Certain capitalized terms used but not otherwise defined
herein remain as defined in SECTION 11.
Pursuant to the 1999 Agreement, the Trust purchased, and the Company sold, for
an aggregate purchase price of $1,000,000.00, 100,000 shares of Class A Voting
Common Stock and 100,000 shares of Class B Non-Voting Common Stock
(collectively, the "COMMON STOCK"). The Common Stock and all other capital stock
of the Company acquired at any time by Executive and/or the Trust (including,
without limitation, shares of Common Stock purchased upon the exercise of the
Options) are sometimes collectively referred to as "EXECUTIVE SECURITIES." The
Executive Securities are subject to certain transfer restrictions and repurchase
rights as set forth herein.
Simultaneously with the execution of this Agreement, the parties hereto have
also entered into a 2001 Stock Option Agreement, the form of which is attached
as ANNEX A hereto. On January 20, 1999 the Company granted Executive options to
purchase 600,000 shares of Common Stock, in accordance with the terms and
conditions contained in the Company's 1999 Stock Option Plan.
The parties hereto, in exchange for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound, hereby agree as follows:
PART I. EMPLOYMENT TERMS
1. EMPLOYMENT AND DUTIES.
(a) The Company shall continue to employ Executive, and Executive
hereby agrees to continue his employment with the Company, in the new capacity
of Executive Vice President as well as Chief Financial Officer pursuant to the
terms and conditions of this Agreement. Executive shall report to the President
of the Company and/or the Board. The Company shall not assign to Executive
duties or functions which are outside of Executive's areas of competence in
order to use Executive's failure to perform as a basis for termination for
Cause.
(b) Executive shall devote his best efforts to the interests of the
Company, which interests may change from time to time, and shall devote such
time to his employment as the duties and responsibilities of his position
reasonably require.
1
<Page>
(c) Executive shall perform such duties and functions commensurate
with his position as may be reasonably assigned or delegated to him from time to
time by the Company's President or Board. Executive acknowledges that such
executive duties and functions may or may not involve performance of services
for or on behalf of affiliates of the Company.
(d) The principal office of the Company at the date hereof, which is
Executive's primary place of employment, is situated in St. Louis County,
Missouri. While the duties of Executive will require him to travel, Executive
shall not be required to change his principal residence from St. Louis County to
a locale other than a locale in which the Company's principal office may be
situated at the time.
(e) The provisions of EXHIBIT 1 (e) are hereby acknowledged as
obligations of Executive both during the Term of his employment and thereafter.
2. TERM AND TERMINATION.
(a) TERM. The "TERM" of Executive's employment is from the date
hereof until the "TERMINATION DATE", which is defined as the date of termination
of Executive's employment pursuant to any one or more of SECTIONS 2(b), 2(c),
2(d) or 2(e) of this Agreement. Executive is an at-will employee of the Company
and such employment may be terminated by Executive, in his sole and arbitrary
discretion, at any time with or without Good Reason, or by the Company, in the
Company's sole and arbitrary discretion, at any time with or without Cause, by
delivery of a written termination notice to the other party, in each case
subject to the consequences in SECTION 4.
(b) DEATH. If Executive dies during the Term, the Termination Date
shall be the date of his death.
(c) DISABILITY. If Executive becomes Disabled during the Term, the
Termination Date shall be the date as of which such Disability is determined.
Subject to applicable law, "DISABILITY" means such physical, mental or
psychological condition or other impairment that prevents Executive from
effectively performing the duties of his employment for more than ninety (90)
calendar days in any six (6) consecutive months commencing on the initial date
of such impairment commencing on the initial date of such impairment. In
connection with any Disability (or possible Disability):
(i) Executive shall cooperate with any physicians engaged by
the Company to examine Executive to determine whether or not Executive is
Disabled, and each of Executive and the Company irrevocably consents to
disclosure to each of them by any such physicians of all matters relating
to such examinations.
(ii) The determination of Disability shall be by agreement of
the Company and Executive, or if Executive's condition is such that he is
unable to participate in such determination, then by agreement of the
Company and Executive's spouse or whoever else is then acting on his
behalf, and if the parties involved in such determination are unable to
reach agreement within 10 days of a request by either party, then the issue
shall be decided by a physician chosen by the Company and reasonably
acceptable to Executive. The Company will pay all expenses incurred in the
determination of whether Executive is Disabled.
(d) TERMINATION BY EXECUTIVE. If Executive terminates his employment,
with or without Good Reason, the Termination Date shall be the date on which
Executive's termination notice is given to the Company, or such later date
indicated on such termination notice; PROVIDED that upon receipt of Executive's
termination notice, the Company may, in its sole discretion, request that
Executive cease
2
<Page>
his employment activities prior to the date referenced in such notice and
Executive shall promptly comply with such request, it being understood that such
request will not change the Termination Date specified in this SECTION 2(d) or
affect the characterization of the termination of Executive's employment.
(e) TERMINATION BY THE COMPANY. If the Company terminates the
employment of Executive, with or without Cause, the Termination Date shall be
the date on which the Company's termination notice is given to Executive, or
such later date indicated on such termination notice.
(f) REVERSAL OF DETERMINATION. If Executive's employment is
terminated by the Company for Cause or by Executive for Good Reason, and it is
thereafter judicially determined that Cause or Good Reason as appropriate for
such termination does not exist, then Executive's employment shall be deemed to
have been terminated without Cause or Good Reason as appropriate as of the
Termination Date. If matters constituting Cause or Good Reason as appropriate
become known to the Company or to Executive subsequent to the time that
Executive's employment is terminated, then either party may, by delivery of
written notice to the other party, treat such termination as being for Cause or
Good Reason as appropriate.
(g) DEFINITION OF CAUSE. "CAUSE" for termination by the Company of
Executive's employment means:
(i) the commission by Executive of any willful act against
the interests of the Company which causes or is intended to cause harm to
the Company or any of its Stockholders. For purposes of this definition, no
act or failure to act on the part of Executive shall be considered
"willful" unless it is done, or omitted to be done, by Executive in bad
faith or without reasonable belief that Executive's action or omission was
in the best interests of the Company. Any act, or failure to act, based
upon specific instructions given pursuant to a resolution duly adopted by
the Board or directed by the President of the Company or based upon the
written advice of regular outside counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in
good faith and in the best interests of the Company;
(ii) Executive has been convicted of, or pleads nolo
contendere with respect to, any felony, or of any lesser crime or offense
having as its predicate element fraud, dishonesty or misappropriation of
the property of the Company;
(iii) the habitual drug addiction or habitual intoxication of
Executive which negatively impacts his job performance; or
(iv) Executive breaches any of the terms of this Agreement or
any other agreement between Executive and the Company which breach is not
cured within twenty (20) days after the delivery of notice in writing from
the Board to Executive of such breach, which notice indicates the Company's
intention to terminate Executive's employment hereunder if such breach is
not cured within such twenty (20) day period and describes the nature of
such breach.
(h) DEFINITION OF GOOD REASON. "GOOD REASON" for termination by
Executive of Executive's employment means (i) a material breach by the Company
of its obligations under this Agreement which is not cured (if curable) within
twenty (20) days after written notice by Executive to the Company, (ii) the
Company requiring Executive to move his primary place of employment by more than
seventy-five (75) miles, if such move increases Executive's commute from his
primary residence, without Executive's written consent thereto; PROVIDED that
Executive must notify the Company in writing of his intent to terminate his
employment pursuant to this SECTION 2(h)(ii) prior to the sixtieth day after the
3
<Page>
earlier of (x) the date that the Company notifies Executive in writing of its
intent to relocate and (y) the date that such relocation occurs, and (iii) the
failure of any successor to the Company to assume this Agreement as set forth in
SECTION 13(k).
3. COMPENSATION.
(a) Executive's compensation for his services hereunder shall consist
of (a) Base Salary, plus (b) Incentive Compensation, if any, plus (c) Benefits,
plus (d) Stock Options. Nothing in this Compensation provision shall be
construed as creating any employment relationship other than that of
employment-at-will.
(b) "BASE SALARY" shall be paid by the Company to Executive at an
annual rate of $325,000, payable in arrears in equal monthly installments. Under
no circumstances may the Base Salary be decreased during the Term.
(c) "INCENTIVE COMPENSATION." if any, up to a maximum of sixty
percent (60%) of Base Salary shall be calculated as set forth below.
(i) DEFINITIONS.
For purposes of determining Incentive Compensation under this Section 3
ONLY, the following definitions (and not the Definitions set forth in
Section 11 of the Agreement) shall apply:
COMPANY": United Industries Corporation.
"YEAR": the Company's fiscal year, which as of the date of this Agreement
is the same as calendar year.
"TARGET EBITDA" means the annual EBITDA (as defined in Section 11)
performance goal for the Company approved by the Board in its reasonable
discretion with the input of Executive. The Board shall use reasonable
efforts to determine Target EBITDA for any fiscal Year after 2001 no later
than the 90th day of the fiscal Year of the Company to which it relates.
Target EBITDA for fiscal 2001 is $60,750,000.
(ii) COMPONENTS OF INCENTIVE COMPENSATION
Executive's Incentive Compensation shall consist of a bonus based on (1)
Executive's achieving pre-established performance objectives (MBOs) for the
applicable Year (the "MBO Component"), and (2) the Company reaching and/or
exceeding its Target EBITDA for the applicable Year (the "EBITDA
Component"):
(1) MBO COMPONENT: The portion of Executive's Incentive Compensation based
on Executive's ACHIEVEMENT OF PRE-ESTABLISHED INDIVIDUAL PERFORMANCE
OBJECTIVES for the applicable Year will be ten percent (10%) of Executive's
Base Salary. A prorated portion of Executive's Incentive Compensation will
be paid if Executive achieves a portion of his pre-established individual
performance objectives for the applicable Year. This award, to be
determined by the President at his sole discretion, is in recognition of
Executive's achieving pre-established individual performance objectives for
the applicable Year, and will be payable within ninety (90) days after
Year-end. Executive's performance objectives for each Year will be
established between Executive and the President no later than the 90th day
of the fiscal Year to which it relates.
4
<Page>
(2) EBITDA COMPONENT: The portion of Executive's Incentive Compensation
that will be paid based on the Company REACHING ITS TARGET EBITDA for the
applicable Year will be forty percent (40%) of Executive's Base Salary.
Additional Incentive Compensation of up to ten percent (10%) of Executive's
Base Salary will be paid based on the Company achieving up to one hundred
five percent (105%) of Target EBITDA for the applicable Year. A prorated
portion of Executive's EBITDA Component of Incentive Compensation will be
paid if the Company achieves at least ninety percent (90%) of its EBITDA
goal for the applicable Year.
Incentive Compensation for a given Year will be payable within ninety (90)
days after Year-end. The Company may elect, at its discretion, to pay a
portion of the Incentive Compensation prior to the end of the Year.
(iii) INCENTIVE COMPENSATION CALCULATION:
Executive's Incentive Compensation shall be calculated as the sum of
the following three (3) calculations within this paragraph 3(c)(iii):
(1) The President, at his sole discretion, in recognition of
Executive's achieving pre-established MBOs for the applicable
Year, will calculate the MBO Component of Incentive Compensation,
In this regard, Executive's Incentive Compensation will equal the
product of (A) Base Salary multiplied by (B) zero percent (0%) up
to ten percent (10%), as determined by the President; plus
(2) If the Company's actual EBITDA for the applicable Year
equals or exceeds ninety percent (90%) of Target EBITDA for the
applicable Year, Executive's Incentive Compensation in this
regard will equal the product of (A) Base Salary multiplied by
(B) twenty percent (20%); plus
(3) If the Company's actual EBITDA for the applicable Year
exceeds ninety percent (90%) of Target EBITDA for the applicable
Year, Executive's Incentive Compensation in this regard will
equal the product of (A) Base Salary multiplied by (B) two
percent (2%) multiplied by (C) the number of percentage points by
which the Company's actual EBITDA for the applicable Year exceeds
ninety percent (90%) of Target EBITDA for such Year up to a
maximum of one hundred five percent (105%) of Target EBITDA.
EXAMPLE: if Executive, in the determination of the President, achieved
95% of his MBOs and the Company's actual EBITDA was 103% of Target
EBITDA for the Year in question, Executive's total Incentive
Compensation would be $180,375 calculated as follows, given a Base
Salary of $325,000:
(A) MBO COMPONENT of $30,875 ($325,000 times 9.5%) plus (B)
EBITDA COMPONENT of $149,500 [($325,000 times 20% = $65,000 for
reaching 90% of Target EBITDA) plus ($325,000 times 2% times 13 =
$84,500 for exceeding 90% of Target EBITDA by thirteen (13)
percentage points) = $149,500] equals (C) $180,375.
5
<Page>
Therefore, the maximum amount of Incentive Compensation
achievable by Executive in an applicable Year is sixty percent
(60%) of Base Salary if 105% of Target EBITDA is achieved in the
applicable Year and all MBOs are achieved.
(d) "BENEFITS" consist of whatever, if any, health,
hospitalization, sick pay, life insurance, disability insurance, profit sharing,
pension, 401(k), and deferred compensation plans and programs that the Company
may have in effect from time to time for its employees who are not members of a
collective bargaining unit, all of which Executive shall be entitled to
participate in on a basis commensurate with his position. Executive shall also
be entitled to six (6) calendar weeks paid vacation each year, in addition to
regularly scheduled holidays. The Company may initiate, change and discontinue
any such plans and programs at any time. If any of such plans or programs
require contributions by employees, Executive shall pay the contributions
required by his participation at a rate no greater than that applicable to any
senior executive of the Company.
(e) STOCK OPTIONS. On January 20, 1999 the Company granted
Executive options (the "OPTIONS") to purchase 600,000 shares of Common Stock,
all on the terms and conditions contained in the Company's 1999 Stock Option
Plan.
As of the Effective Date hereof, the Company has granted Executive Options to
purchase 600,000 shares of Common Stock, all on the terms and conditions
contained in the Company's 2001 Stock Option Plan approved by the Board and in a
2001 Stock Option Agreement, the form of which is attached hereto at ANNEX A.
Shares of Common Stock acquired through the exercise of options shall be
referred to herein as "OPTION SHARES."
Executive shall be eligible for an additional grant of 100,000 shares of Common
Stock on January 1, 2002, at the sole discretion of the President (and subject
to approval by the Compensation Committee of the Board), based on Executive's
performance. This additional grant will be made under the 2001 Stock Option Plan
and will be subject to the same vesting schedule and pricing as the grant made
to Executive on the Effective Date.
4. TERMINATION PROVISIONS.
(a) If the Company terminates Executive's employment for Cause, or if
Executive terminates his employment without Good Reason, or if Executive
terminates his employment without Extended Executive Notice, then in any such
case
(i) Executive shall be entitled to Base Salary and Benefits
for the period ending on the Termination Date; and
(ii) Executive shall be entitled to any unpaid Incentive
Compensation for any calendar Year ending prior to the Year in which
the Termination Date occurs, as well as any Incentive Compensation for
the calendar Year in which the Termination Date occurs pro-rated based
on the portion of Base Salary paid to Executive by the Company in such
Year.
(b) If Executive terminates his employment for Good Reason or if
Executive's employment terminates by reason of his death or Disability, then in
any such case
6
<Page>
(i) Executive shall be entitled to Base Salary and Benefits
for the period ending on the Termination Date;
(ii) Executive shall be entitled to any unpaid Incentive
Compensation for any calendar Year ending prior to the Year in which
the Termination Date occurs, as well as Incentive Compensation for the
calendar Year in which the Termination Date occurs pro-rated based on
the portion of Base Salary paid to Executive by the Company in such
Year, and
(iii) IF, AND ONLY IF, Executive (or his estate, guardian or
personal representative, as the case may be) signs and delivers to the
Company a complete general release of claims in the form of ANNEX B
attached hereto, then Executive shall be entitled to his Base Salary
(but no Incentive Compensation) for the period commencing on the
Termination Date and ending on the date which is one (1) year after
the Termination Date, together with any other Benefits as may be
provided under the terms of any applicable written plan, program or
arrangement of the Company applicable to all senior executives of the
Company.
If Executive does not comply with the terms of SECTION 4(b)(iii), above, within
90 days after the Termination Date, then Executive shall only be entitled to
payments as set forth in SECTIONS 4(b)(i), and 4(b)(ii), above, and the Company
shall not be responsible for any further payments to Executive.
(c) If the Company terminates Executive's employment without Cause and IF,
AND ONLY IF, Executive (or his estate, guardian or personal representative, as
the case may be) signs and delivers to the Company a general release of claims
in the form of ANNEX B attached to the Agreement, then Executive shall be
entitled to the following:
(i) his Base Salary (but no Incentive Compensation) for the period
commencing on the Termination Date and ending on the date which is two
(2) years after the Termination Date, payable in twenty-four (24)
equal consecutive monthly payments; and
(ii) as of the Termination Date Executive's group medical and dental
coverage will be converted to equivalent coverage pursuant to COBRA,
and the Company will reimburse Executive for his COBRA-related
insurance premiums for the period commencing on the Termination Date
and ending on the date which is one (1) year after the Termination
Date, provided Executive signs and files his COBRA election forms no
later than sixty (60) days after the Termination Date (as required by
law). Executive shall pay his own COBRA-related insurance premiums for
the 13th through 18th month of coverage following the Termination
Date. Any group life insurance and/or long-term disability coverage
which Executive may currently have will cease as of the Termination
Date, although Executive may convert the policies to individual
coverage at his own expense as and to the extent permitted by the
group policies involved.
If Executive does not comply with the terms of this Section 4(c) within thirty
(30) days after the Termination Date, then Executive shall only be entitled to
payments as set forth in Sections 4(b)(i) and 4(b)(ii), and the Company shall
not be responsible for any further payments to Executive. The time allowed to
execute the general release shall be extended from thirty (30) days to ninety
(90) days if at any time prior to or during the thirty (30) days after the
Termination Date Executive dies or becomes incompetent and a court of
appropriate jurisdiction appoints a guardian for him.
7
<Page>
(d) Any amounts owed by the Company to Executive pursuant to SECTION
4 shall be paid at such times and in such manner as if the termination giving
rise to such payments had not occurred (with the Company retaining the right to
prepay all or any portion of such amount at any time in its sole discretion).
The Company's obligation to make any payments pursuant to SECTION 4 shall be
conditioned upon Executive's continued and continuing compliance with the terms
and conditions of this Agreement (including, without limitation, SECTION 6
hereof).
(e) Except as otherwise specified herein, if Executive's employment
terminates on any date other than the last day of a month, Executive's
compensation for that month shall be calculated on the basis of a fraction, the
numerator of which is the number of calendar days during that month that
Executive is in the Company's employ and the denominator of which is the number
of days in that month.
(f) EXTENDED EXECUTIVE NOTICE PROVISION: Any provision of this
Agreement to the contrary notwithstanding, if Executive terminates his
employment by providing the Company with written notice (which in any event
cannot be given to the Company prior to January 1, 2003) stating that his
Termination Date is not less than six (6) months nor more than twelve (12)
months from the date the Company is given the notice ("Extended Executive
Notice"), whether such termination by Executive is with or without Good Reason,
then in such case:
(i) Executive shall be entitled to Base Salary and Benefits for
the period ending on the Termination Date stated in the Extended
Executive Notice, even if the Company elects to terminate
Executive at a date prior to the Termination Date set forth in
the Extended Executive Notice, and
(ii) Executive shall be entitled to any unpaid Incentive
Compensation for any calendar year ending prior to the year in
which the Termination Date occurs, as well as Incentive
Compensation for the calendar Year in which the Termination Date
occurs pro-rated based on a percentage equal to that portion of
Base Salary paid to Executive by the Company from the first day
of such Year through the Termination Date divided by all Base
Salary that would have been due Executive for said calendar Year;
and
(iii) IF, AND ONLY IF, Executive (or his estate, guardian or
personal representative, as the case may be) signs and delivers
to the Company a general release of claims in the form of ANNEX B
attached to the Agreement, then Executive shall be entitled to
the following:
(A) his Base Salary (but no Incentive Compensation) for
the period commencing on the Termination Date and ending
on the date which is one (1) year after the Termination
Date, payable in twelve (12) equal consecutive monthly
payments; and
(B) as of the Termination Date, Executive's group medical
and dental coverage will be converted to equivalent
coverage pursuant to COBRA, and the Company will
reimburse Executive for his COBRA-related insurance
premiums for the period commencing on the Termination
Date and ending on the date which is one (1) year after
the Termination Date, provided Executive signs and files
his COBRA election forms no later than sixty (60) days
after the Termination Date (as required by law).
Executive shall pay his own COBRA-related insurance
premiums for the 13th through 18th month of coverage
following the Termination Date.
8
<Page>
Any group life insurance and/or long-term disability
coverage which Executive may currently have will cease as
of the Termination Date, although Executive may convert
the policies to individual coverage at his own expense as
and to the extent permitted by the group policies
involved.
If Executive does not comply with the terms of this Section
4(f)(iii) within thirty (30) days after the Termination Date,
then Executive shall only be entitled to payments as set forth in
Sections 4(f)(i) and 4(f)(ii) above, and the Company shall not be
responsible for any further payments to Executive. The time
allowed to execute the general release shall be extended from
thirty (30) days to ninety (90) days if at any time prior to or
during the thirty (30) days after the Termination Date Executive
dies or becomes incompetent and a court of appropriate
jurisdiction appoints a guardian for him.
(iv) Executive agrees that during the period covered by the
Extended Executive Notice: (1) he shall continue to perform his
duties in accordance with his obligations under Section 1(b) of
the Agreement to "devote his best efforts to the interests of the
Company" and to "devote such time to his employment as the duties
and responsibilities of his position may reasonably require", and
(2) Executive shall not participate in any interviews (in person,
telephonic or otherwise) with prospective employers if by doing
so Executive cannot fully perform his obligations to the Company
pursuant to this subparagraph (iv).
(v) If Executive terminates his employment by providing less than
six (6) months' prior written notice thereof to Company, or if
Executive gives the Extended Executive Notice to the Company
prior to January 1, 2003, or if Executive fails to comply with
the provisions of the immediately preceding subsection 4(f)(iv)
and fails to cure such noncompliance after being given at least
ten (10) days' written notice thereof, or if Executive is
terminated for Cause during the period covered by the Extended
Executive Notice, then Executive shall be entitled solely to Base
Salary and Benefits for the period ending on the Termination
Date.
5. EXPENSES.
(a) The Company shall reimburse Executive for all reasonable expenses
incurred in the performance of his duties in accordance with the expense
reimbursement policy of the Company with respect to senior executives of the
Company in effect at the time.
(b) If the Company requires Executive to locate outside of St. Louis,
then the Company shall reimburse Executive for his reasonable relocation
expenses in accordance with the expense reimbursement policy of the Company in
effect at the time.
6. NONCOMPETITION, NONSOLICITATION, CONFIDENTIALITY.
As a material inducement to the Company to enter into this Agreement
and in consideration of the payment by the Company of the compensation detailed
herein to Executive:
(a) During the period (the "NONCOMPETE PERIOD") beginning on the date
hereof and ending on the later of (x) the first anniversary of the Termination
Date and (y) if severance payments are
9
<Page>
owed to Executive by the Company pursuant to SECTION 4, above, the last date on
which such payments are due to be paid to Executive (notwithstanding any
reduction in such payments pursuant to SECTION 4(d)), Executive shall not,
without the prior written consent of the Company (which consent may be granted
or withheld in the Company's sole discretion), directly or indirectly,
Participate in any line of business in which the Business is actively engaged or
any line of business competitive with the Business anywhere in the United States
and any other country in which the Company does business as of the Closing (the
"COMPETITIVE ACTIVITIES"). For purposes of this Agreement, the term
"PARTICIPATE" includes any direct or indirect interest in, or providing any
direct or indirect assistance (whether financial, advisory or otherwise) to, any
enterprise (or any affiliate thereof), whether as an officer, director,
employee, partner, member, sole proprietor, agent, representative, independent
contractor, consultant, creditor, stockholders, unitholder, owner or otherwise;
provided that the term "Participate" shall not include ownership of less than 2%
of the Common Stock of a publicly-held corporation whose Common Stock is traded
on a national securities exchange or in the over-the-counter market. The parties
agree that, without violating this SECTION 6(a), Executive may accept employment
with any Person which engages in Competitive Activities; PROVIDED that such
Person's business is diversified (and has separate and distinct divisions) and
Executive is employed in a part of its business which does not engage in
Competitive Activities; PROVIDED FURTHER that the Company, prior to Executive
accepting such employment, shall receive separate written assurances
satisfactory to the Company from the board of directors of such Person and
Executive acknowledging that Executive is bound by this SECTION 6, the terms of
which such Person has read, and covenanting that Executive will not render
services directly or indirectly in connection with any product, process, system
or service of any person or organization other than the Company, in existence or
under development, which is the same as or competes with a product, process,
system or service upon which Executive has worked during the last two years of
Executive's employment by the Company or about which Executive acquires
Confidential Information.
(b) During the Noncompete Period, Executive (a) except with respect
to Executive's personal secretary, shall not, directly or indirectly contact,
approach or solicit for the purpose of offering employment to or hiring (whether
as an employee, consultant, agent, independent contractor or otherwise) or
actually hire any person employed by the Company during the Noncompete Period
and (b) shall not induce or attempt to induce any customer or other business
relation of the Company to cease doing business with the Company or to engage in
any business relationship which might materially harm the Company.
(c) Executive acknowledges that certain of the information,
observations and data relating to the Company which he possesses or has obtained
as an employee, officer, director or stockholder of the Company is the
confidential and proprietary property of the Company ("CONFIDENTIAL
INFORMATION"). Executive agrees that he shall not, directly or indirectly, use
for his own purposes or use for or disclose to any third party any of such
Confidential Information without the prior written consent of the Company,
unless and to the extent that the aforementioned matters (i) become generally
known to and available for use by the public other than as a result of a
Executive's acts or omissions to act, or (ii) Executive is required by order of
a court of competent jurisdiction (by subpoena or similar process) to disclose
or discuss any Confidential Information (provided that in such case, Executive
shall promptly inform the Company of such order, shall cooperate with the
Company at the Company's expense in attempting to obtain a protective order or
to otherwise restrict such disclosure, and shall only disclose Confidential
Information to the minimum extent necessary to comply with any such court
order). This SECTION 6(c) shall not apply to disclosures of Confidential
Information by Executive during his employment with the Company in the ordinary
course of business that he reasonably believes are necessary or appropriate and
in the Company's best interests.
(d) The parties hereto acknowledge and agree that the Company will
suffer irreparable harm from a breach by Executive of any of the covenants or
agreements contained in this
10
<Page>
SECTION 6. In the event of an alleged or threatened breach by Executive of any
of the provisions of this SECTION 6, the Company or their successors or assigns
may, in addition to all other rights and remedies existing in its or their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive or other equitable relief in order to enforce or prevent any
violations of the provisions hereof. Executive acknowledges and agrees that the
restrictions contained in this SECTION 6 are reasonable.
(e) If, at the time enforcement is sought of any of the provisions of
this SECTION 6, a court holds that the restrictions stated herein are
unreasonable under the circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area.
Executive agrees that the covenants made in this SECTION 6 shall be construed as
an agreement independent of any other provision of this Agreement and shall
survive any order of a court of competent jurisdiction terminating any other
provision of this Agreement.
PART II. PURCHASE OF EXECUTIVE SECURITIES
7. PURCHASE AND SALE OF EXECUTIVE SECURITIES.
(a) COMMON STOCK. Upon execution of the 1999 Agreement, the Trust
purchased, and the Company sold, 100,000 shares of the Company's Class A Voting
Common Stock and 100,000 shares of the Company's Class B Non-Voting Common Stock
at a price of $5.00 per share (the "PURCHASED STOCK"). The Company delivered to
the Trust the certificates representing such shares of Common Stock, and the
Trust delivered to the Company the aggregate amount of $1,000,000 (the "PURCHASE
PRICE").
(b) CERTAIN REPRESENTATIONS AND WARRANTIES. In connection with the
purchase and sale of Executive Securities whether pursuant to the 1999
Agreement, this Agreement or otherwise, Executive hereby represents and warrants
to the Company that:
(i) The Executive Securities beneficially acquired by
Executive pursuant to the 1999 Agreement, or which may be beneficially
acquired pursuant to this Agreement or otherwise, have been in the past and
shall be acquired in the future for his own account and not with a view to,
or intention of, distribution thereof in violation of the Securities Act,
or any applicable state securities laws, and the Executive Securities shall
not be disposed of in contravention of the Securities Act or any applicable
state securities laws;
(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Executive Securities;
(iii) Executive is an "accredited investor" as defined under
Regulation D promulgated under the Securities Act;
(iv) Executive is able to bear the economic risk of his
investment in the Executive Securities for an indefinite period of time
because the Executive Securities have not been registered under the
Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration
is available;
(v) Executive has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Executive Securities and has had full access to such other information
concerning the Company as he has requested. Executive has reviewed, or has
had an opportunity to review, a copy of the Recapitalization Agreement, the
11
<Page>
Stockholders Agreement, all of the exhibits thereto and all of the other
agreements contemplated hereby and thereby;
(vi) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive do not
and shall not conflict with, violate or cause a breach of any material
agreement, contract or instrument to which Executive is a party or any
judgment, order or decree to which he is subject; and
(vii) Executive is a United States citizen and a resident of
the State of Missouri.
(c) CERTAIN REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In
connection with the purchase and sale of the Executive Securities under the 1999
Agreement, the Company continues to represent and warrant to Executive that:
(i) The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) The execution, delivery and performance of the 1999
Agreement did not violate, conflict with or result in any breach of the
Company's organizational documents or any terms or conditions of any
material agreements to which the Company is a party;
(iii) Any Executive Securities delivered pursuant to the 1999
Agreement, including the shares of Common Stock issuable upon exercise of
the Options, are duly authorized, validly issued, fully paid and
non-assessable and will not be subject to pre-emptive or similar rights;
and
(iv) The holders of least 75% of the Company's voting common
stock reviewed the 1999 Agreement and the Stock Option Agreement annexed
thereto and approved the terms and conditions contained herein and therein,
including, without limitation, those terms and conditions relating to
contingent payments that may be due to Executive upon a Sale of the Company
and may have otherwise constituted an "excess parachute payment" pursuant
to Section 280G of the Internal Revenue Code of 1986, as amended and a copy
of such consent was previously provided to Executive (as an attachment to
the 1999 Agreement with reference to EXHIBIT 7(c)(iv).
(d) ADDITIONAL REPRESENTATION AND WARRANTY. As an inducement to the
Company to sell the Executive Securities to Executive pursuant to the 1999
Agreement, and as a condition thereto, Executive acknowledged and agreed, and
continues to acknowledge and agree, that neither the issuance of the Executive
Securities to Executive nor any provision contained herein shall entitle him to
remain in the employment of the Company and its Subsidiaries or affect the right
of the Company or Executive to terminate his employment at any time, in
accordance with the provisions of SECTION 4 hereof.
(e) COMPENSATION ARRANGEMENTS. The Company and Executive acknowledge
and agree that this Agreement has been executed and delivered, and the Executive
Securities were issued pursuant to the 1999 Agreement, all in connection with
and as a part of the compensation and incentive arrangements between the Company
and Executive.
(f) PAYMENTS TO THE TRUST. In consideration of Executive's agreement
to continue employment with the Company, the Company agreed in the 1999
Agreement to accelerate the payment of
12
<Page>
all amounts owed to Executive by the Company pursuant to that certain Contract
for Release in Event of Sale dated as of January 1, 1997 by and between the
Company and Executive. Notwithstanding the terms of such agreement, the Company
paid to the Trust, on behalf of Executive, a portion of the Share (as defined
therein) equal to the Purchase Price immediately upon the execution of a
deferred compensation election which was attached to the 1999 Agreement. The
Company paid the remainder of the Share (net of any withholding obligations) to
Executive immediately upon the execution of such election (the aggregate amount
paid on the date hereof to the Trust and Executive (prior to withholding) with
respect to the Share was referred to in the 1999 Agreement as the "ESTIMATED
SHARE AMOUNT"). The amounts paid to the Trust on behalf of Executive pursuant to
such election were for the sole benefit of the Trust, and Executive has no right
or ability to receive such amounts except as provided in the Trust's constituent
documents. Executive and the Company acknowledge and agree that the final
determination of the amount of the Share was made pursuant to the 1999
Agreement, which amount was contingent upon the final determination by the
Company of the Company's Stockholders Equity as of December 31, 1998, as
reflected on the Company's audited financial statements. The 1999 Agreement
provided that if the amount of the Share as finally determined (based on the
final determination of 12/31/98 Stockholders Equity) was less than the Estimated
Share Amount, Executive was to promptly pay to the Company an amount of cash
equal to such shortfall. The 1999 Agreement further provided that if the amount
of the Share as finally determined (based on the final determination of 12/31/98
Stockholders Equity) was greater than the Estimated Share Amount, the Company
was to promptly pay to Executive an amount of cash equal to such excess, net of
any withholding obligations.
8. REPURCHASE OPTION.
(a) RIGHT OF REPURCHASE. In the event Executive ceases to be employed
by the Company and its Subsidiaries for any reason (the "TERMINATION"), the
Executive Securities (whether held by Executive or the Trust or one or more of
their transferees) shall be subject to repurchase by the Company pursuant to the
terms and conditions set forth in this SECTION 8 (the "REPURCHASE OPTION").
(b) PURCHASE PRICE. Any repurchase of Executive Securities pursuant
to the Repurchase Option shall be at the "REPURCHASE PRICE" described in this
SECTION 8(b) determined as of the date of the Termination. If Executive's
employment is terminated by Executive without Good Reason prior to January 20,
2004 or by the Company for Cause, the Repurchase Price for all of the Option
Shares shall be the lower of (i) the Fair Market Value therefor and (ii) the
Original Cost therefor. If Executive's employment is terminated for any other
reason, the Repurchase Price for all Option Shares shall be the Fair Market
Value therefor. Notwithstanding the reason for the termination of Executive's
employment, the Repurchase Price for all Purchased Shares shall be the Fair
Market Value therefor.
(c) REPURCHASE BY THE COMPANY. The Company may elect to purchase all
or any portion of the Executive Securities at the Repurchase Price by delivering
written notice (the "REPURCHASE NOTICE") to Executive within 120 days after the
Termination. The Repurchase Notice shall set forth the number of shares to be
acquired from Executive and/or the Trust and/or their transferees (if any), the
aggregate consideration to be paid for such securities, and the time and place
for the closing of the transaction (the "REPURCHASE CLOSING"). The Company may,
in its sole discretion, assign its rights pursuant to this SECTION 8 to the
holders of its capital stock (other than Executive and any other Stockholder
whose shares are being repurchased) pro rata on the basis of the number of
shares owned (with subsequent re-offer in the event of under subscription);
PROVIDED that any such assignees shall comply with the terms of this SECTION 8.
(d) REPURCHASE CLOSING. The closing of the purchase of the Executive
Securities pursuant to the Repurchase Option shall take place on the date
designated by the Company in the Repurchase Notice which date shall not be more
than 60 days nor less than 10 days after the delivery of
13
<Page>
such notice delivered. Subject to SECTION 8(e), the Company shall pay for the
Executive Securities to be purchased pursuant to the Repurchase Option by
delivery of a check or wire transfer of funds. The Company shall be entitled to
receive customary representations and warranties regarding good title to such
securities, free and clear of any liens or encumbrances, power and authority,
due execution, and enforceability.
(e) CERTAIN RESTRICTIONS. Notwithstanding anything to the contrary
contained in this Agreement, all repurchases of Executive Securities by the
Company shall be subject to applicable restrictions contained in the Delaware
General Corporation Law and in the Company's and its Subsidiaries' debt and
equity financing agreements. If any such restrictions prohibit the repurchase of
Executive Securities hereunder which the Company is otherwise entitled or
required to make, the time periods provided in this SECTION 8 shall be
suspended, and the Company shall make such repurchases as soon as it is
permitted to do so under such restrictions with interest at an annual rate of
7%. In addition, the Company may pay the Repurchase Price for such Executive
Securities by offsetting any bona fide debts owed by Executive to the Company.
(f) TERMINATION OF REPURCHASE OPTION. The Repurchase Option set forth
in this SECTION 8 shall continue with respect to all Executive Securities
following any Transfer thereof; PROVIDED that such Repurchase Option shall
terminate effective immediately after the consummation of a Sale of the Company
or a Public Offering of the Company's equity securities in which the Company
receives net proceeds of at least $100 million; and PROVIDED FURTHER that, with
respect to each share of Executive Securities, the Repurchase Option with
respect to such share shall terminate immediately upon the Transfer of such
share pursuant to a Public Sale.
9. RESTRICTIONS ON TRANSFER.
(a) STOCKHOLDERS AGREEMENT. The Executive Securities are subject to
the restrictions on Transfer set forth in the Stockholders Agreement.
(b) LEGEND. The certificates representing the Executive Securities
shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON JANUARY 20, 1999 HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, TRANSFERRED
OR OTHERWISE DISPOSED OF WITHOUT AN EFFECTIVE REGISTRATION
UNDER THE ACT OR AN EXEMPTION THEREFROM. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE
OPTIONS, AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND DANIEL JOHNSTON
DATED AS OF JANUARY 20, 1999, AS AMENDED AND MODIFIED FROM
TIME TO TIME. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY
THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF
BUSINESS WITHOUT CHARGE."
10. SURVIVAL. SECTION 4 and SECTIONS 6 through 13 shall survive and
continue in full force in accordance with their terms notwithstanding any
termination of the Employment Period.
14
<Page>
11. DEFINITIONS. The following definitions shall be applied to the
capitalized terms used in this Agreement for all purposes, unless otherwise
clearly indicated:
(a) DEFINED TERMS.
"BOARD" means the Company's board of directors.
"BUSINESS" means the business conducted by the Company including,
without limitation, (a) the production and sale of termiticide products and (b)
the business conducted by the Company's Spectrum and Chemsico Divisions.
"EBITDA" means, for a given period, the consolidated Company's
accounting earnings of the Company and its consolidated Subsidiaries before
taking into account any interest expense, provision for income taxes or
depreciation or amortization expense, excluding for this purpose extraordinary
gains and losses unless included in the determination of Target EBITDA.
"EXECUTIVE SECURITIES" has the meaning set forth in the PREAMBLE.
Executive Securities shall continue to be Executive Securities in the hands of
any holder other than Executive and except as otherwise provided herein, each
such other holder of Executive Securities shall succeed to all rights and
obligations attributable to Executive as a holder of Executive Securities
hereunder. Executive Securities shall also include securities of the Company
issued with respect to Executive Securities by way of a stock split, stock
dividend or other recapitalization.
"FAIR MARKET VALUE" of each share of any class or type of Executive
Security means the fair value of such shares or such class or type of Executive
Security determined in good faith by the Board, based on the assumption of an
arms-length transaction between a willing buyer and a willing seller, taking
into account all reasonable and customary factors relevant to value including,
without limitation, the fact that there may be no public market for the
Company's securities, but not including any minority discount; PROVIDED that the
"FAIR MARKET VALUE" of each share of Executive Securities issued pursuant to the
1999 Agreement shall not be less than the Original Cost of such share.
"INDEPENDENT THIRD PARTY" means any Person who, immediately prior to
the contemplated transaction, does not own in excess of 50% of the Company's
voting common stock on a fully-diluted basis (a "50% OWNER"), who is not an
affiliate of any such 50% Owner, who is not the spouse or descendent (by birth
or adoption) of any such 50% Owner or a trust for the benefit of any such 50%
Owner and/or such other Persons, and who is not a Person who through contract or
other arrangements (other than arrangements entered into in connection with the
contemplated transactions) would be an affiliate immediately after the
contemplated transaction.
"ORIGINAL COST" for each share of Common Stock issued to Executive
pursuant to the 1999 Agreement shall be equal to $5.00 (as proportionately
adjusted for all subsequent stock splits, stock dividends and other
recapitalizations).
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PUBLIC OFFERING" means the sale in an underwritten public offering
registered under the Securities Act of shares of any class of the Company's
Common Stock.
15
<Page>
"PUBLIC SALE" means any sale pursuant to a Public Offering or any sale
to the public pursuant to Rule 144 promulgated under the Securities Act effected
through a broker, dealer or market maker.
"SALE OF THE COMPANY" means (a) the acquisition by an Independent
Third Party of voting securities of (x) the Company or (y) the surviving entity
in any reorganization, merger or consolidation (each an "ACQUISITION") involving
the Company (any such entity referred to herein as the "CORPORATION") where such
Acquisition causes such Independent Third Party to own more than fifty percent
(50%) of the combined voting power of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of directors, other
than acquisitions by the Thomas H. Lee Company or its affiliates, (b) the
approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company, (c) the acquisition by an Independent Third Party of
more than 50% of the Company's assets determined on a consolidated basis or (d)
if individuals who constitute the Board on the date of the Company's initial
Public Offering of equity securities (the "INCUMBENT BOARD") cease for any
reason to constitute at least a majority of the Board thereafter, it being
understood that any individual becoming a director subsequent to such date whose
election, or nomination for election, is, at any time, approved by a vote of at
least a majority of the directors comprising the Incumbent Board shall be
considered a member of the Incumbent Board.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time.
"STOCKHOLDERS" means the Persons holding the outstanding Common Stock
or other equity interests of the Company at the time in question.
"STOCKHOLDERS AGREEMENT" means that certain Stockholders Agreement,
dated as of the date hereof, by and among the Company, Executive and certain
other Persons listed on the signature pages thereto.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such limited liability company, partnership, association or other business
entity.
"TARGET EBITDA" means the annual performance goal for the Company
approved by the Board in its reasonable discretion with the input of Executive.
The Board shall use reasonable efforts to determine Target EBITDA for any fiscal
Year after 2001 no later than the 90th day of the fiscal Year of the Company to
which it relates. Target EBITDA for fiscal 2001 is $60,750,000.
"TRANSFER" has the meaning ascribed to such term in the Stockholders
Agreement.
(b) OTHER DEFINITIONS. Other capitalized terms set forth in this
Agreement remain as defined in the Original Agreement.
16
<Page>
12. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, mailed by first class mail (postage
prepaid and return receipt requested) or sent by reputable overnight courier
service (charges prepaid) to the recipient at the address below indicated:
TO THE COMPANY
United Industries Corporation
8825 Page Boulevard
St. Louis, MO 63114
Telecopy: (314) 253-5941
Attention: Chief Executive Officer
TO EXECUTIVE
Daniel Johnston
1939 Newburyport
Chesterfield, MO 63005
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
13. GENERAL PROVISIONS.
(a) EXPENSES. The Company and Executive will each pay their own
respective legal expenses in connection with the negotiation and execution of
this Agreement and the agreements contemplated hereby.
(b) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) COMPLETE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way
including, without limitation, that certain Employment Agreement by and between
the Company and Executive dated as of January 1, 1998, that certain Contract for
Release in the Event of Sale by and between the Company and Executive dated as
of January 1, 1997, and the 1999 Agreement, except as otherwise specifically set
forth in this Agreement. As of the date of his execution of this Agreement,
Executive hereby specifically rescinds the Executive Notice letter dated January
2, 2001.
(d) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
17
<Page>
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors and assigns (including
subsequent holders of Executive Securities); PROVIDED that the rights and
obligations of Executive under this Agreement shall not be assignable except in
connection with a permitted Transfer of Executive Securities.
(f) GOVERNING LAW. The laws of the state of Missouri shall govern all
issues and questions concerning the employment of Executive, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Missouri or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Missouri.
All other issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Delaware.
(g) REMEDIES. Each of the parties to this Agreement shall be entitled
to enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorney's fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages would not be
an adequate remedy for any breach of the provisions of this Agreement and that
any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement
(h) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company, the Trust
and Executive.
(i) THIRD-PARTY BENEFICIARY. There are no beneficiaries to this
Agreement other than the signatories hereto.
(j) BUSINESS DAYS. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief executive office is located, the time
period shall be automatically extended to the business day immediately following
such Saturday, Sunday or legal holiday.
(k) ASSIGNMENT. Nothing in this Agreement shall preclude the Company
from consolidating or merging into or with, or transferring all or substantially
all of its assets to, another corporation; PROVIDED that the Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company to assume this Agreement. As used in this Agreement,
"COMPANY" shall mean the Company, as defined above, and any successor to its
business and/or assets as aforesaid which assumes this Agreement by operation of
law or otherwise.
(l) WITHHOLDING. All amounts payable to Executive as compensation
hereunder shall be subject to customary withholding by the Company.
(m) MITIGATION BY EXECUTIVE. In no event shall Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement and
such amounts shall not be reduced whether or not Executive obtains other
employment.
18
<Page>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
UNITED INDUSTRIES CORPORATION
------------------------
DANIEL JOHNSTON
By:
---------------------
Its: PRESIDENT AND CEO
------------------------
MATTHEW M. McCARTHY, in his capacity as successor
trustee of that certain Trust Agreement dated as
of January 20, 1999 by and between the Company And
Stephen R. Brian, as original trustee
19
<Page>
EXHIBIT 1(e)
ADDITIONAL EMPLOYMENT TERMS
The Company is an "equal opportunity employer", and does not practice and
will not tolerate unlawful discrimination or harassment of employees or
applicants for employment. Should Executive ever encounter such a situation, he
shall promptly report, in writing, any incident of which he becomes aware,
whether or not directly affecting Executive, which he reasonably believes
involves unlawful discrimination or unlawful harassment of any kind. Every such
written report may be delivered or mailed in a sealed envelope addressed to the
"Personal and Confidential" attention of the Chief Executive Officer of the
Company.
The Company strives to maintain the highest levels of professional behavior
in all aspects of business and also to provide a safe and healthful environment
in which to work. Towards this end, the Company may from time to time deem it
appropriate to conduct certain tests or examinations. These tests would all be
at the Company's expense and by agreeing to submit to these programs, Executive
is indicating both his willingness to participate and his support for goals in
mind subject to whatever legal restrictions or prohibitions may be applicable at
the time, if any: (a) Executive authorizes every person involved in
administering or conducting such tests or examinations to furnish full reports
to the Company, and (b) such tests and examinations may include, but are not
limited to polygraph examinations (as permitted under law), testing or
examination to determine the presence of drugs, alcohol, contagious or
non-contagious disease, or physical or mental defect or impairment, and also
testing and examination relevant to aptitude in respect of employment
opportunities, advancement, classification and reclassification.
20