RAYOVAC CORPORATION AND SUBSIDIARIES
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
For the Transition Period ended September 30, 1996
and the years ended June 30, 1994, 1995 and 1996
(In thousands)
Column A Column B Column C Column D Column E
- ------------------------------------------- ------------ ----------- ------------ --------------
Additions
Balance at Charged to
Beginning Costs and Balance at
Descriptions of Period Expenses Deductions End of Period
- ------------------------------------------- ------------ ----------- ------------ --------------
September 30, 1997:
Allowance for doubtful accounts ......... $722 $617 $118 $1,221
===== ===== ===== =======
Transition Period Ended September 30, 1996:
Allowance for doubtful accounts ......... $786 $147 $211 $ 722
===== ===== ===== =======
June 30, 1996:
Allowance for doubtful accounts ......... $702 $545 $461 $ 786
===== ===== ===== =======
June 30, 1995:
Allowance for doubtful accounts ......... $831 $714 $843 $ 702
===== ===== ===== =======
S-2
FORM OF AMENDED AND
RESTATED ARTICLES OF INCORPORATION
OF
RAYOVAC CORPORATION
----------------------------------
The following Restated Articles of Incorporation ("Restated
Articles") of Rayovac Corporation, a Wisconsin corporation (the "Corporation"),
were duly adopted in accordance with and pursuant to Sections 180.1003 and
180.1007 of the Wisconsin Business Corporation Law (the "WBCL") , Chapter 180 of
the Wisconsin Statutes ("Chapter 180"), and amend, supersede and restate the
Corporation's existing Restated Articles of Incorporation.
ARTICLE I
The name of the Corporation is RAYOVAC CORPORATION.
ARTICLE II
The period of existence of the Corporation shall be perpetual.
ARTICLE III
The purpose or purposes for which the Corporation is organized
is to carry on and engage in any lawful activity within the purposes for which
corporations may be organized under Chapter 180.
ARTICLE IV
The aggregate number of shares of capital stock which the
Corporation shall have the authority to issue is (i) one hundred and fifty
million (150,000,000) shares of common stock, each having a par value of one
penny ($.01) ("Common Stock"), and (ii) five million (5,000,000) shares of
preferred stock, each having a par value of one penny ($.01) ("Preferred
Stock").
ARTICLE V
The Board of Directors is expressly authorized to provide for
the issuance of all or any shares of the Preferred Stock in one or more classes
or series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences,
and relative,
participating, optional or other special rights, and such qualifications,
limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the
issuance of such class or series and as may be permitted by the WBCL, including,
without limitation, the authority to provide that any such class or series may
be (a) subject to redemption at such time or times and at such price or prices;
(b) entitled to receive dividends (which may be cumulative or non-cumulative) at
such rates, on such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class or classes or
any other series; (c) entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation; or (d) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the Corporation at
such price or prices or at such rates of exchange and with such adjustments; all
as may be stated in such resolution or resolutions.
ARTICLE VI
No holder of any class of stock of the Corporation shall,
because of such holder's ownership of said stock, have any pre-emptive or other
right to purchase, or subscribe for, or take any part of any class of stock, or
any part of any notes, debentures, bonds or other securities convertible into or
carrying options or warrants to purchase any class of stock of the Corporation.
ARTICLE VII
(a) The number of directors constituting the Board of
Directors of the Corporation shall be such number (one or more) as is fixed from
time to time by the By-laws of the Corporation.
(b) The directors shall be divided into three classes,
designated Class I, Class II and Class III. Each class shall consist, as nearly
as may be possible, of one-third of the total number of directors constituting
the entire Board of Directors. The initial division of the Board of Directors
into classes shall be made by the decision of the affirmative vote of a majority
of the entire Board of Directors. Each director shall serve for a term ending on
the date of the third annual meeting of shareholders following the annual
meeting at which such director was elected and until his successor is duly
elected and duly qualified; provided, however, that each initial director of the
first class shall hold office until the date of the annual meeting of
shareholders held in 1999 and until his successor is duly elected and duly
qualified, each initial director of the second class shall hold office until the
date of the annual meeting of shareholders held in 2000 and until his successor
is duly
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elected and duly qualified, and each initial director of the third class shall
hold office until the date of the annual meeting of shareholders held in 2001
and until his successor is duly elected and duly qualified. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be duly elected and shall duly
qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board of Directors
that results from an increase in the number of directors may be filled by a
majority of the directors then in office, provided that a quorum is present, and
any other vacancy occurring in the Board of Directors may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining term
as that of his predecessor.
Any director may be removed from office as a director, but
only for cause, by the affirmative vote of holders of at least two-thirds
(66 2/3%) of the voting power of shares entitled to vote at an election of
directors.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies, removal and other features of such directorships shall be governed
by the terms of the instrument creating such class or series of Preferred Stock,
and such directors so elected shall not be divided into classes pursuant to this
Article SEVENTH unless expressly provided by such terms.
(c) The presence of a majority of the total number of
directors shall constitute a quorum for the transaction of business and, except
as otherwise provided herein or in the By-laws of the Corporation, the vote of a
majority of such quorum shall be required in order for the Board of Directors to
act.
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ARTICLE VIII
Any action required or permitted to be taken by the
shareholders of the Corporation must be effected at a duly called annual or
special meeting of shareholders of the Corporation. The shareholders shall not
have the power to consent in writing to the taking of any action.
ARTICLE IX
Unless otherwise required by law, special meetings of
shareholders, for any purpose or purposes, may be called only by (i) the
Chairman of the Board of Directors, if there be one, (ii) the President, (iii)
any Vice President, if there be one, (iv) the Secretary or (v) any Assistant
Secretary, if there be one, and shall be called by any such officer at the
request in writing of a majority of the Board of Directors. The shareholders
shall not have the power to call a special meeting of shareholders of the
Corporation.
ARTICLE X
The address of the registered office of the Corporation is 601
Rayovac Drive, P.O. Box 4960, Madison, Wisconsin 53711-0960, in Dane County and
the name of the Corporation's registered agent at such address is David A.
Jones.
ARTICLE XI
These Restated Articles of Incorporation may be amended
pursuant to the By-laws of the Corporation and in the manner authorized by law
at the time of amendment.
ARTICLE XII
If any of the Corporation's shareholders enter into one or
more agreements with the Corporation that impose limitations on the transfer of
shares of the Corporation's Common Stock or that otherwise provide for the
purchase and sale of outstanding shares upon the happening of certain events and
contingencies, each such agreement shall be binding on the parties to the
agreement in all respects, and any attempted transfer of shares in violation of
the agreement's terms and provisions shall be void and ineffective in all
respects. If any such agreement so provides, all persons who subsequently
acquire shares shall be bound by the agreement's terms and provisions as if they
were signatories to the agreement.
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FORM OF AMENDED AND
RESTATED BY-LAWS
OF
RAYOVAC CORPORATION
(hereinafter called the "Corporation")
ARTICLE I. OFFICES
1.1 Principal and Business Offices. The Corporation may have
such principal and other business offices, either within or without the State of
Wisconsin, as the Board of Directors may designate or as the business of the
Corporation may require from time to time.
1.2 Registered Office. The registered office of the
Corporation required by the Wisconsin Business Corporation Law to be maintained
in the State of Wisconsin may be, but need not be, identical with the principal
office in the State of Wisconsin, and the address of the registered office may
be changed from time to time by the Board of Directors or by the registered
agent. The business office of the registered agent of the Corporation shall be
identical to such registered office.
ARTICLE II. SHAREHOLDERS
2.1 Annual Meeting. The annual meeting of shareholders shall
be held on such date and at such time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which
meeting the shareholders shall elect directors, and transact such other business
as may properly be brought before the meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
shareholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
2.2 Special Meeting. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute or the Articles
of Incorpora-
tion, may be called only by (i) the Chairman of the Board of Directors, if there
be one, (ii) the President, (iii) any Vice President, if there be one, (iv) the
Secretary or (v) any Assistant Secretary, if there be one, and shall be called
by any such officer at the request in writing of a majority of the Board of
Directors. Shareholders shall not be entitled to call a Special Meeting of the
shareholders, nor to require the Board of Directors to call such a special
meeting. Special meetings of the shareholders may be held on any date, at any
time and at any place within or without the State of Wisconsin as shall be
determined by the Board of Directors. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than ten nor more than sixty
days before the date of the meeting to each shareholder entitled to vote at such
meeting.
2.3 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Wisconsin, as the place of meeting
for any annual meeting or for any special meeting called by the Board of
Directors. A waiver of notice signed by all shareholders entitled to vote at a
meeting may designate any place, either within or without the State of
Wisconsin, as the place for the holding of such meeting. If no designation is
made, or if a special meeting be otherwise called, the place of meeting shall be
the principal business office of the Corporation in the State of Wisconsin or
such other suitable place in the county of such principal office as may be
designated by the person calling such meeting, but any meeting may be adjourned
to reconvene at any place designated by the holders of a majority of the votes
represented thereat.
2.4 Closing of Transfer Books or Fixing of Record Date. For
the purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not to
exceed, in any case, fifty days. If the stock transfer books shall be closed for
the purpose of determining shareholders entitled to notice of or to
2
vote at a meeting of shareholders, such books shall be closed for at least ten
days immediately preceding such meeting. In lieu of closing the stock transfer
books, the Board of Directors may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than fifty days and, in case of a meeting of shareholders, not less than ten
days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the close of business on the date on
which notice of the meeting is mailed or on the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall be applied
to any adjournment thereof except where the determination has been made through
the closing of the stock transfer books and the stated period of closing has
expired.
2.5 Voting Records. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall, before each meeting of
shareholders, make a complete record of the shareholders entitled to vote at
such meeting, or any adjournment thereof, arranged in alphabetical order, and
indicating the address of each shareholder, the number of shares of each class
of capital stock of the Corporation entitled to vote registered in the name of
such shareholder and the total number of votes to which each shareholder is
entitled. Such record shall be produced and kept open at the time and place of
the meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting for any purpose germane to the meeting. The original
stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such record or transfer books or to vote at any
meeting of shareholders. Failure to comply with the requirements of this section
shall not affect the validity of any action taken at such meeting.
3
2.6 Quorum. Except as otherwise provided in the Articles of
Incorporation, a quorum shall exist at a meeting of shareholders if shares of
the Corporation holding a majority of the votes entitled to be cast at such
meeting are represented in person or by proxy at such meeting of shareholders,
but in no event shall a quorum consist of less than one-third of the shares
entitled to vote at the meeting. If a quorum is present, the affirmative vote of
the holders of a majority of the votes represented at the meeting in person or
by proxy voting together as a single class shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by law or
the Articles of Incorporation. If a quorum shall fail to attend any meeting, the
presiding officer at the meeting may adjourn the meeting to another place, date
or time. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
2.7 Conduct of Meeting. The Chairman of the Board, and in his
absence, the President, and in their absence, any person chosen by the
shareholders present shall call the meeting of the shareholders to order and
shall act as chairman of the meeting, and the Secretary of the Corporation shall
act as secretary of all meetings of the shareholders, but, in the absence of the
Secretary, the presiding officer may appoint any other person to act as
secretary of the meeting.
2.8 Proxies. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by the
shareholder or by his duly authorized attorney in fact. Such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. Unless otherwise provided in the proxy, a proxy may be revoked at any
time before it is voted, either by written notice filed with the Secretary or
the acting secretary of the meeting or by oral notice given by the shareholder
to the presiding officer during the meeting. The presence of a shareholder who
has filed his proxy shall not of itself constitute a revocation. No proxy shall
be valid after eleven months from the date of its execution, unless otherwise
provided in the proxy. The Board of Directors shall have the
4
power and authority to make rules establishing presumptions as to the validity
and sufficiency of proxies.
2.9 Voting of Shares. Each outstanding share shall be entitled
to one vote upon each matter submitted to a vote at a meeting of shareholders,
except to the extent that voting rights of the shares of any class or classes
are enlarged, limited or denied by the Articles of Incorporation.
2.10 Voting of Shares by Certain Holders.
(a) Other Corporations. Shares standing in the name
of another corporation may be voted either in person or by proxy, by the
president of such corporation or any other officer appointed by such president.
A proxy executed by any principal officer of such other corporation or assistant
thereto shall be conclusive evidence of the signer's authority to act, in the
absence of express notice to this Corporation, given in writing to the Secretary
of this Corporation, of the designation of some other person by the board of
directors or the bylaws of such other corporation.
(b) Legal Representatives and Fiduciaries. Shares
held by any administrator, executor, guardian, conservator, trustee in
bankruptcy, receiver, or assignee for creditors may be voted by him, either in
person or by proxy, without a transfer of such shares into his name provided
that there is filed with the Secretary before or at the time of meeting proper
evidence of his incumbency and the number of shares held. Shares standing in the
name of a fiduciary may be voted by him, either in person or by proxy. A proxy
executed by a fiduciary, shall be conclusive evidence of the signer's authority
to act, in the absence of express notice to this Corporation, given in writing
to the Secretary of this Corporation, that such manner of voting is expressly
prohibited or otherwise directed by the document creating the fiduciary
relationship.
(c) Pledgees. A shareholder whose shares are pledged
shall be entitled to vote such shares until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee shall be entitled to
vote the shares so transferred.
5
(d) Treasury Stock and Subsidiaries. Neither treasury
shares, nor shares held by another corporation if a majority of the shares
entitled to vote for the election of directors of such other corporation is held
by this Corporation, shall be voted at any meeting or counted in determining the
total number of votes represented at such a meeting, but shares of its own issue
held by this Corporation in a fiduciary capacity, or held by such other
corporation in a fiduciary capacity, may be voted and shall be counted in
determining the total number of votes represented at such a meeting.
(e) Minors. Shares held by a minor may be voted by
such minor in person or by proxy and no such vote shall be subject to
disaffirmance or avoidance, unless prior to such vote the Secretary of the
Corporation has received written notice or has actual knowledge that such
shareholder is a minor.
(f) Incompetents and Spendthrifts. Shares held by an
incompetent or spendthrift may be voted by such incompetent or spendthrift in
person or by proxy and no such vote shall be subject to disaffirmance or
avoidance, unless prior to such vote the Secretary of the Corporation has actual
knowledge that such shareholder has been adjudicated an incompetent or
spendthrift or actual knowledge of filing of judicial proceedings for
appointment of a guardian.
(g) Joint Tenants. Shares registered in the names of
two or more individuals who are named in the registration as joint tenants may
be voted in person or by proxy signed by any one or more of such individuals if
either (i) no other such individual or his legal representative is present and
claims the right to participate in the voting of such shares or prior to the
vote files with the Secretary of the Corporation a contrary written voting
authorization or direction or written denial of authority of the individual
present or signing the proxy proposed to be voted or (ii) all such other
individuals are deceased and the Secretary of the Corporation has no actual
knowledge that the survivor has been adjudicated not to be the successor to the
interests of those deceased.
2.11 Waiver of Notice by Shareholders. Whenever any notice
whatsoever is required to be given to any
6
shareholder of the Corporation under the Articles of Incorporation or By-Laws or
any provision of law, a waiver thereof in writing, signed at any time, whether
before or after the time of the meeting, by the shareholder entitled to such
notice, shall be deemed equivalent to the giving of such notice; provided that
such waiver in respect to any matter of which notice is required under any
provision of the Wisconsin Business Corporation Law, shall contain the same
information as would have been required to be included in such notice, except
the time and place of meeting.
2.12 No Action by Consent of Shareholders in Lieu of Meeting.
Any action required or permitted to be taken by the shareholders of the
Corporation must be effected at a duly constituted annual or special meeting of
such shareholders and may not be effected by any consent in writing by such
shareholders.
2.13 Nomination of Directors. Only persons who are nominated
in accordance with the following procedures shall be eligible for election as
directors of the Corporation. Nominations of persons for election as directors
of the Corporation may be made at a meeting of shareholders only (i) by or at
the direction of the Board of Directors, (ii) by any nominating committee or
person appointed by the Board of Directors or (iii) by any shareholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 2.13. Such
nominations, other than those made by or at the direction of the Board of
Directors or by any nominating committee or person appointed by the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a shareholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than 50 days nor more than 75 days prior to the meeting at which directors
will be elected; provided, however, that in the event that less than 65 days'
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made,
whichever
7
first occurs. Such shareholder's notice to the Secretary shall set forth (a) as
to each person whom the shareholder proposes to nominate for election or
re-election as a director, (i) the name, business address and residence of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the Corporation that are
beneficially owned by the person and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Rule 14a under the Securities Exchange Act of
1934, as now or hereafter amended; and (b) as to the shareholder giving the
notice, (i) the name and record address of such shareholder and (ii) the class
and number of shares of capital stock of the Corporation that are beneficially
owned by such shareholder. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the Corporation
to determine the eligibility of such proposed nominee to serve as a director of
the Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The presiding officer at the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedures, and if he should so determine, he
shall so declare to the meeting and such nomination shall be disregarded.
2.14 Other Business. To be properly brought before a meeting
of shareholders, business must be either (a) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (c) otherwise properly brought before the
meeting by a shareholder. In addition to any other applicable requirements, for
business to be properly brought before a meeting by a shareholder, the
shareholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a shareholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation, not
less than 50 days nor more than 75 days prior to the meeting; provided, however,
that in the event that less than 65 days'
8
notice or prior public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the 15th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made,
whichever first occurs. A shareholder's notice to the Secretary shall set forth
with respect to each matter the shareholder proposes to bring before the
meeting, (i) a brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the meeting, (ii)
the name and record address of the shareholder proposing such business, (iii)
the class and number of shares of capital stock of the Corporation that are
beneficially owned by such shareholder and others known by such shareholder to
support the proposal of such business and (iv) any material interest of such
shareholder and other supporters referred to in the preceding clause (iii) in
such proposed business.
Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at any meeting except in accordance with the
procedures set forth in this Section 2.14, provided, however, that nothing in
this Section 2.14 shall be deemed to preclude discussion by any shareholder of
any business properly brought before any meeting.
The presiding officer at the meeting shall, if the facts
warrant, determine and declare to the meeting that the business was not properly
brought before the meeting in accordance with the provisions of this Section
2.14, and if he should so determine, he shall so declare to the meeting, and any
such business not properly brought before the meeting shall not be transacted.
ARTICLE III. BOARD OF DIRECTORS
3.1 General Powers and Number. The business and affairs of the
Corporation shall be managed by its Board of Directors. The number of directors
of the Corporation shall be nine (9).
3.2 Tenure and Qualifications. Each director shall serve for a
term ending on the date of the third annual meeting of shareholders following
the annual meeting at which such director was elected and until his
9
successor is duly elected and duly qualified, or until his prior death,
resignation or removal from office. A director may be removed from office as a
director, but only for cause, by the affirmative vote of holders of at least
two-thirds (66 2/3%) of the voting power of shares entitled to vote at an
election of directors. A director may resign at any time by filing his written
resignation with the Secretary of the Corporation. Directors need not be
residents of the State of Wisconsin or shareholders of the Corporation. A
director, other than the Chairman of the Board, who is an officer of the
Corporation and who shall retire or otherwise terminate employment as such
officer shall automatically be retired as a director of the Corporation and
thereafter shall not be eligible for re-election as a director.
3.3 Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Wisconsin. Regular meetings of the Board of Directors may be held at such time
and at such place as may from time to time be determined by the Board of
Directors and, unless required by resolution of the Board of Directors, without
notice. Special meetings of the Board of Directors may be called by the Chairman
of the Board of Directors, the Vice Chairman, if there be one, or a majority of
the directors then in office. Notice thereof stating the place, date and hour of
the meeting shall be given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting, by telephone, facsimile
or telegram on twenty-four (24) hours' notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
3.4 Quorum. Except as otherwise provided by law or by the
Articles of Incorporation or these By-Laws, a majority of the directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but a majority of the directors present (though less than such
quorum) may adjourn the meeting from time to time without further notice.
3.5 Manner of Acting. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors,
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unless the act of a greater number is required by law or by the Articles of
Incorporation or these By-Laws.
3.6 Conduct of Meetings. The Chairman of the Board, and in his
absence, any director chosen by the directors present, shall call meetings of
the Board of Directors to order and shall act as chairman of the meeting. The
Secretary of the Corporation shall act as secretary of all meetings of the Board
of Directors but in the absence of the Secretary, the presiding officer may
appoint any Assistant Secretary or any director or other persons present to act
as secretary of the meeting.
3.7 Vacancies. Except as otherwise provided in the Articles of
Incorporation, any vacancy occurring in the Board of Directors, including a
vacancy created by an increase in the number of directors, shall be filled until
the next succeeding annual election by the affirmative vote of a majority of the
directors then in office, though less than a quorum of the Board of Directors;
provided, that in case of a vacancy created by the removal of a director by vote
of the shareholders, the shareholders shall have the right to fill such vacancy
at the same meeting or any adjournment thereof in accordance with the Articles
of Incorporation.
3.8 Compensation. The Board of Directors, by affirmative vote
of a majority of the directors then in office, and irrespective of any personal
interest of any of its members, may establish reasonable compensation of all
directors for services to the Corporation as directors, officers or otherwise,
or may delegate such authority to an appropriate committee. The Board of
Directors also shall have authority to provide for or delegate authority to an
appropriate committee to provide for reasonable pensions, disability or death
benefits, and other benefits or payments, to directors, officers and employees
and to their estates, families, dependents or beneficiaries on account of prior
services rendered by such directors, officers and employees to the Corporation.
3.9 Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors or a committee thereof of
which he is a member at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his
11
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
3.10 Committees. The Board of Directors by resolution adopted
by the affirmative vote of a majority of the number of directors then in office
may designate one or more committees, each committee to consist of three or more
directors elected by the Board of Directors, which, to the extent provided in
said resolution as initially adopted, and as thereafter supplemented or amended
by further resolution adopted by a like vote, shall have and may exercise, when
the Board of Directors is not in session, the powers of the Board of Directors
in the management of the business and affairs of the Corporation, except action
in respect to dividends to shareholders, election of the principal officers or
the filling of vacancies in the Board of Directors or committees created
pursuant to this section. The Board of Directors may elect one or more of its
members as alternate members of any such committee who may take the place of any
absent member or members at any meeting of such committee, upon request by the
Chairman of the Board or upon request by the chairman of such meeting. Each such
committee shall fix its own rules governing the conduct of its activities and
shall make such reports to the Board of Directors of its activities as the Board
of Directors may request.
3.11 Unanimous Consent Without Meeting. Any action required or
permitted by the Articles of Incorporation or By-Laws or any provision of law to
be taken by the Board of Directors at a meeting or by resolution may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors then in office.
3.12 Telephonic Meetings. Unless otherwise provided by the
Certificate of Incorporation or these By-Laws, members of the Board of Directors
of the Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Direc-
12
tors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 3.14 shall constitute presence in person at such meeting.
ARTICLE IV. OFFICERS
4.1 Number. The principal officers of the Corporation shall be
a Chairman of the Board, a President, a number of Vice Presidents as shall be
determined by the Board of Directors from time to time, a Secretary, and a
Treasurer, each of whom shall be elected by the Board of Directors. The Board of
Directors may from time to time elect or appoint such officers and assistant
officers as may be deemed necessary. Any number of offices may be held by the
same person.
4.2 Election and Term of Office. The officers of the
Corporation to be elected by the Board of Directors shall be elected annually by
the Board of Directors at the first meeting of the Board of Directors held after
each annual meeting of the shareholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his successor shall be
duly elected or until his prior death, resignation or removal. Any officer may
resign at any time upon written notice to the Corporation. Failure to elect
officers shall not dissolve or otherwise affect the Corporation.
4.3 Removal. Any officer or agent may be removed by the Board
of Directors at any time by the affirmative vote of a majority of the Board of
Directors, but such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Election or appointment shall not of itself
create contract rights.
4.4 Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification or otherwise, shall be filled by
the Board of Directors for the unexpired portion of the term.
4.5 Chairman of the Board. The Chairman of the Board shall be
elected or appointed by, and from the
13
membership of the Board of Directors. He shall, when present, preside at all
meetings of the shareholders and of the Board of Directors. He shall perform
such other duties and functions as shall be assigned to him from time to time by
the Board of Directors or in these By-Laws. Except where by law the signature of
the President of the Corporation is required, the Chairman of the Board shall
possess the same power and authority to sign, execute and acknowledge, on behalf
of the Corporation, all deeds, mortgages, bonds, stock certificates, contracts,
leases, reports and all other documents or instruments necessary or proper to be
executed in the course of the Corporation's regular business, or which shall be
authorized by resolution of the Board of Directors; and except as otherwise
provided by law or by the Board of Directors, he may authorize the President or
any Vice President or other officer or agent of the Corporation to sign, execute
and acknowledge such documents or instruments in his place and stead. During the
absence or disability of the President, or while that office is vacant, the
Chairman of the Board shall exercise all of the powers and discharge all of the
duties of the President.
4.6 President. The President shall be the chief executive
officer and chief operations officer of the Corporation and, subject to the
control of the Board of Directors, shall in general determine the direction and
goals of the Corporation and supervise and control all of the business,
operations and affairs of the Corporation. He shall have authority, subject to
such rules as may be prescribed by the Board of Directors, to appoint such
agents and employees of the Corporation as he may deem necessary, to prescribe
their powers, duties and compensation, and to delegate authority to them. Such
agents and employees shall hold office at the discretion of the President. He
shall have authority, co-equal with the Chairman of the Board, to sign, execute
and acknowledge, on behalf of the Corporation, all deeds, mortgages, bonds,
stock certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
Corporation's regular business, or which shall be authorized by resolution of
the Board of Directors; and, except as otherwise provided by law or by the Board
of Directors, he may authorize any Vice President or any other officer or agent
of the Corporation to sign, execute and acknowledge such docu-
14
ments or instruments in his place and stead. In general, he shall perform all
duties incident to the office of chief executive officer, chief operating
officer and President and such other duties as may be prescribed by the Board of
Directors from time to time.
4.7 Vice Presidents. In the absence of the Chairman of the
Board and the President or in the event of their deaths, inability or refusal to
act, or in the event for any reason it shall be impracticable for the Chairman
of the Board or President to act personally, the Vice President (or in the event
thereby more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election) shall perform the duties of the Chairman of the
Board and/or President (as the case may be), and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Chairman of the
Board or President (as the case may be). Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the Corporation;
and shall perform such other duties and have such authority as from time to time
may be delegated or assigned to him by the Chairman of the Board, President or
Board of Directors. The execution of any instrument of the Corporation by any
Vice President shall be conclusive evidence, as to third parties, of his
authority to act in the stead of the Chairman of the Board and/or the President.
4.8 Secretary. The Secretary shall: (a) keep the minutes of
the meeting of the shareholders and the Board of Directors in one or more books
provided for that purpose; (b) attest instruments to be filed with the Secretary
of State; (c) see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law; (d) be custodian of the
corporate records; (e) keep or arrange for the keeping of a register of the post
office address of each shareholder which shall be furnished to the Secretary by
such shareholders; (f) sign with the Chairman of the Board or the President,
certificates for shares of the Corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (g) have general charge
of the stock transfer books of the Corporation; and (h) in general perform all
duties incident to the office of the Secretary and have such other duties and
exercise such author-
15
ity as from time to time may be delegated or assigned to him by the Chairman of
the Board, the President or by the Board of Directors.
4.9 Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the Corporation;
(b) receive and give receipts from moneys due and payable to the Corporation
from any source whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories as shall be
selected by the Corporation; and (c) in general perform all of the duties and
exercise such other authority as from time to time may be delegated or assigned
to him by the Chairman of the Board, the Vice Chairman of the Board or the
President or by the Board of Directors. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his duties in such
sum and with such surety or sureties as the Board of Directors shall determine.
4.10 Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as the
Board of Directors may from time to time authorize. The Assistant Secretaries
may sign with the Chairman of the Board or the President certificates for shares
of the Corporation the issuance of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine. The Assistant Secretaries and Assistant Treasurers,
in general, shall perform such duties and have such authority as shall from time
to time be delegated or assigned to them by the Secretary or the Treasurer,
respectively, or by the Chairman of the Board, the President or by the Board of
Directors.
4.11 Other Assistants; Acting Officers; Other Officers. The
Board of Directors shall have the power to appoint any person to act as
assistant to any officer, or as agent for the Corporation in his stead, or to
perform the duties of such officer whenever for any reason it is impracticable
for such officer to act personally, and such assistant or acting officer or
other agent so ap-
16
pointed by the Board of Directors shall have the power to perform all the duties
of the office to which he is so appointed to be an assistant, or as to which he
is so appointed to act, except as such power may be otherwise defined or
restricted by the Board of Directors. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
4.12 Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or by a duly authorized
committee thereof, and no officer shall be prevented from receiving such salary
by reason of the fact that he is also a director of the Corporation.
ARTICLE V. CONTRACTS; SPECIAL CORPORATE ACTS
5.1 Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute or
deliver any instrument in the name of and on behalf of the Corporation, and such
authorization may be general or confined to specific instances. In the absence
of other designation, all deeds, mortgages and instruments of assignment or
pledge made by the Corporation shall be executed in the name of the Corporation
by the Chairman of the Board or the President or one of the Vice Presidents and
by the Secretary, an Assistant Secretary, the Treasurer or an Assistant
Treasurer; and when so executed no other party to such instrument or any third
party shall be required to make any inquiry into the authority of the signing
officer of officers.
5.2 Voting of Securities Owned by this Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the President or any Vice President and any
such officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security
17
holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof,
the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Certificates for Shares. Certificates representing shares
of the Corporation shall be in such form, consistent with law, as shall be
determined by the Board of Directors. Such certificates shall be signed by the
Chairman of the Board and by the Secretary or an Assistant Secretary. All
certificates for shares shall be consecutively numbered or otherwise identified.
The name and address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
stock transfer books of the Corporation. All certificates surrendered to the
Corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except as provided in Section 6.6.
6.2 Facsimile Signatures and Seal. The signature of the
Chairman of the Board and the Secretary or Assistant Secretary upon a
certificate may be facsimiles if the certificate is manually signed on behalf of
a transfer agent, or a registrar, other than the Corporation itself or an
employee of the Corporation. The Corporation shall have a corporate seal.
6.3 Signature by Former Officers. In case any officer, who has
signed or whose facsimile signature has been placed upon any certificate for
shares, shall have ceased to be such officer before such certificate is issued,
it may be issued by the Corporation with the same effect as if he were such
officer at the date of its issue.
6.4 Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer, the Corporation may treat
the registered owner of such shares as the person exclusively entitled to
18
vote, to receive notifications and otherwise to have and exercise all the rights
and powers of an owner. Where a certificate for shares is presented to the
Corporation with a request to register for transfer, the Corporation shall not
be liable to the owner or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate the
necessary endorsements, and (b) the Corporation had no duty to inquire into
adverse claims or has discharged any such duty. The Corporation may require
reasonable assurance that said endorsements are genuine and effective and in
compliance with such other regulations as may be prescribed by or under the
authority of the Board of Directors.
6.5 Lost, Destroyed or Stolen Certificates. Where the owner
claims that his certificate for shares has been lost, destroyed or wrongfully
taken, a new certificate shall be issued in place thereof if the owner (a) so
requests before the Corporation has notice that such shares have been acquired
by a bona fide purchaser, and (b) files with the Corporation a sufficient
indemnity bond, and (c) satisfies such other reasonable requirements as may be
prescribed by or under the authority of the Board of Directors.
6.6 Consideration for Shares. The shares of the Corporation
may be issued for such consideration as shall be fixed from time to time by the
Board of Directors, provided that any shares having a par value shall not be
issued for a consideration less than the par value thereof. The consideration to
be paid for shares may be paid in whole or in part, in money, in other property,
tangible or intangible, or in labor or services actually performed for the
Corporation. When payment of the consideration for which shares are to be issued
shall have been received by the Corporation, such shares shall be deemed to be
fully paid and nonassessable by the Corporation. No certificate shall be issued
for any share until such share is fully paid.
6.7 Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with the statutes of the State of Wisconsin as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the Corporation.
19
ARTICLE VII. AMENDMENTS
7.1 By Shareholders. Except as otherwise provided in the
Articles of Incorporation, these By-Laws may be altered, amended or repealed and
new By-Laws may be adopted by the shareholders by affirmative vote of not less
than a majority of the votes represented in person or by proxy entitled to be
cast therefor at any annual or special meeting of the shareholders at which a
quorum is in attendance.
7.2 By Directors. Except as otherwise provided in the Articles
of Incorporation, these By-Laws may also be altered, amended or repealed and new
By-Laws may be adopted by the Board of Directors by affirmative vote of a
majority of the number of directors present at any meeting at which a quorum is
in attendance; but no By-Law adopted by the shareholders shall be amended or
repealed by the Board of Directors if the By-Law so adopted so provides.
7.3 Implied Amendments. Any action taken or authorized by the
shareholders or by the Board of Directors, which would be inconsistent with the
By-Laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
By-Laws so that the By-Laws would be consistent with such action, shall be given
the same effect as though the By-Laws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
ARTICLE VIII. INDEMNIFICATION
8.1 Certain Definitions. All capitalized terms used in this
Article VIII and not otherwise hereinafter defined in this Section 8.1 shall
have the meaning set forth in Section 180.042 of the Statute. The following
capitalized terms (including any plural forms thereof) used in this Article VIII
shall be defined as follows:
(a) "Affiliate" shall include, without limitation,
any corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise that directly or indirectly through one or more interme-
20
diaries, controls or is controlled by, or is under common control with, the
Corporation.
(b) "Authority" shall mean the entity selected by the
Director or Officer to determine his or her right to indemnification pursuant to
Section 8.4.
(c) "Board" shall mean the entire then elected and
serving board of directors of the Corporation, including all members thereof who
are Parties to the subject Proceeding or any related Proceeding.
(d) "Breach of Duty" shall mean the Director or
Officer breached or failed to perform his or her duties to the Corporation and
his or her breach of or failure to perform those duties is determined, in
accordance with Section 8.4, to constitute misconduct under Section
180.044(2)(a) 1, 2, 3 or 4 of the Statute.
(e) "Corporation" as used herein and as defined in
the Statute and incorporated by reference into the definitions of certain other
capitalized terms used herein, shall mean this Corporation, including, without
limitation, any successor corporation or entity to this Corporation by way of
merger, consolidation or acquisition of all or substantially all of the capital
stock or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set
forth in the Statute; provided, that, for purposes of this Article VIII, it
shall be conclusively presumed that any Director or Officer serving as a
director, officer, partner, trustee, member of any governing or decision-making
committee, employee or agent of an Affiliate shall be so serving at the request
of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the
Board who are not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the
Statute; provided, that, for purposes of this Article VIII, the term "Party"
shall also include any Director or Officer who is or was a witness in a
Proceeding at a time when he or she has not otherwise been formally named a
Party thereto.
21
(i) "Proceeding" shall have the meaning set forth in
the Statute; provided, that, for purposes of this Article VIII, the term
"Proceeding" shall also include all Proceedings (i) brought under (in whole or
in part) the Securities Act of 1933, as amended, the Securities Exchange Act of
1934, as amended, their respective state counterparts, and/or any rule or
regulation promulgated under any of the foregoing; (ii) brought before an
Authority or otherwise to enforce rights hereunder; (iii) any appeal from a
Proceeding; and (iv) any Proceeding in which the Director or Officer is a
plaintiff or petitioner because he or she is a Director or Officer; provided,
however, that such Proceeding is authorized by a majority vote of a
Disinterested Quorum.
(j) "Statute" shall mean Sections 180.042 through
180.059, inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of
the Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the extent
such amendment permits or requires the Corporation to provide broader
indemnification rights than the Statute permitted or required the Corporation to
provide prior to such amendment.
8.2 Mandatory Indemnification. To the fullest extent permitted
or required by the Statute, the Corporation shall indemnify a Director or
Officer against all Liabilities incurred by or on behalf of such Director or
Officer in connection with a Proceeding in which the Director or Officer is a
Party because he or she is a Director or Officer.
8.3 Procedural Requirements.
(a) A Director or Officer who seeks indemnification
under Section 8.2 shall make a written request therefor
to the Corporation. Subject to Section 8.3(b), within sixty days of the
Corporation's receipt of such request, the Corporation shall pay or reimburse
the Director or Officer for the entire amount of Liabilities incurred by the
Director or Officer in connection with the subject Proceeding (net of any
Expenses previously advanced pursuant to Section 8.5).
(b) No indemnification shall be required to be paid
by the Corporation pursuant to Sec-
22
tion 8.2 if, within such sixty-day period, (i) a Disinterested Quorum, by a
majority vote thereof, determines that the Director or Officer requesting
indemnification engaged in misconduct constituting a Breach of Duty or (ii) a
Disinterested Quorum cannot be obtained.
(c) In either case of nonpayment pursuant to Section
8.3(b), the Board shall immediately authorize by resolution that an Authority,
as provided in Section 8.4, determine whether the Director's or Officer's
conduct constituted a Breach of Duty and, therefore, whether indemnification
should be denied hereunder.
(d) (i) If the Board does not authorize an Authority
to determine the Director's or Officer's right to indemnification hereunder
within such sixty-day period and/or (ii) if indemnification of the requested
amount of Liabilities is paid by the Corporation, then it shall be conclusively
presumed for all purposes that a Disinterested Quorum has determined that the
Director or Officer did not engage in misconduct constituting a Breach of Duty
and, in the case of subsection (i) above (but not subsection (ii)),
indemnification by the Corporation of the requested amount of Liabilities shall
be paid to the Director or Officer immediately.
8.4 Determination of Indemnification.
(a) If the Board authorizes an Authority to determine
a Director's or Officer's right to indemnification pursuant to Section 8.3, then
the Director or Officer requesting indemnification shall have the absolute
discretionary authority to select one of the following as such Authority:
(i) An independent legal counsel;
provided, that such counsel shall be mutually selected by such Director
or Officer and by a majority vote of a Disinterested Quorum or, if a
Disinterested Quorum cannot be obtained, then by a majority vote of the
Board;
(ii) A panel of three arbitrators selected
from the panels of arbitrators of the American Arbitration Association
in Madison, Wisconsin; provided, that (A) one arbitrator shall be
selected by such Director
23
or Officer, the second arbitrator shall be selected by a majority vote
of a Disinterested Quorum or, if a Disinterested Quorum cannot be
obtained, then by a majority vote of the Board, and the third
arbitrator shall be selected by the two previously selected
arbitrators, and (B) in all other respects, such panel shall be
governed by the American Arbitration Association's then existing
Commercial Arbitration Rules; or
(iii) A court pursuant to and in
accordance with Section 180.051 of the Statute.
(b) In any such determination by the selected
Authority there shall exist a rebuttable presumption that the Director's or
Officer's conduct did not constitute a Breach of Duty and that indemnification
against the requested amount of Liabilities is required. The burden of rebutting
such a presumption by clear and convincing evidence shall be on the Corporation
or such other party asserting that such indemnification should not be allowed.
(c) The Authority shall make its determination within
sixty days of being selected and shall submit a written opinion of its
conclusion simultaneously to both the Corporation and the Director or Officer.
(d) If the Authority determines that indemnification
is required hereunder, the Corporation shall pay the entire requested amount of
Liabilities (net of any Expenses previously advanced pursuant to Section 8.5),
including interest thereon at a reasonable rate, as determined by the Authority,
within ten days of receipt of the Authority's opinion; provided, that, if it is
determined by the Authority that a Director or Officer is entitled to
indemnification as to some claims, issues or matters, but not as to other
claims, issues or matters, involved in the subject Proceeding, the Corporation
shall be required to pay (as set forth above) only the amount of such requested
Liabilities as the Authority shall deem appropriate in light of all of the
circumstances of such Proceeding.
24
(e) The determination by the Authority that
indemnification is required hereunder shall be binding upon the Corporation
regardless of any prior determination that the Director or Officer engaged in a
Breach of Duty.
(f) All Expenses incurred in the determination
process under this Section 8.4 by either the Corporation or the Director or
Officer, including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
8.5 Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse, within
ten days after the receipt of the Director's or Officer's written request
therefor, the reasonable Expenses of the Director or Officer as such Expenses
are incurred; provided, the following conditions are satisfied:
(i) The Director or Officer furnishes to
the Corporation an executed written certificate affirming his or her
good faith belief that he or she has not engaged in misconduct which
constitutes a Breach of Duty; and
(ii) The Director or Officer furnishes to
the Corporation an unsecured executed written agreement to repay any
advances made under this Section 8.5 if it is ultimately determined by
an Authority that he or she is not entitled to be indemnified by the
Corporation for such Expenses pursuant to Section 8.4.
(b) If the Director or Officer must repay any
previously advanced Expenses pursuant to this Section 8.5, such Director or
Officer shall not be required to pay interest on such amounts.
8.6 Indemnification and Allowance of Expenses of Certain
Others.
(a) The Corporation shall indemnify a director or
officer of an Affiliate (who is not otherwise serving as a Director or Officer)
against all Liabilities, and shall advance the reasonable Expenses,
25
incurred by such director or officer in a Proceeding to the same extent
hereunder as if such director or officer incurred such Liabilities because he or
she was a Director or Officer, if such director or officer is a Party thereto
because he or she is or was a director or officer of the Affiliate.
(b) The Board may, in its sole and absolute
discretion as it deems appropriate, pursuant to a majority vote thereof,
indemnify against Liabilities incurred by, and/or provide for the allowance of
reasonable Expenses of, an employee or authorized agent of the Corporation
acting within the scope of his or her duties as such and who is not otherwise a
Director or Officer.
8.7 Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or was an
employee or authorized agent of the Corporation against any Liability asserted
against or incurred by such individual in his or her capacity as such or arising
from his or her status as such, regardless of whether the Corporation is
required or permitted to indemnify against any such Liability under this Article
VIII.
8.8 Notice to the Corporation. A Director or Officer shall
promptly notify the Corporation in writing when he or she has actual knowledge
of a Proceeding which may result in a claim of indemnification against
Liabilities or allowance of Expenses hereunder, but the failure to do so shall
not relieve the Corporation of any liability to the Director or Officer
hereunder unless the Corporation shall have been irreparably prejudiced by such
failure (as determined by an Authority selected pursuant to Section 8.4(a)).
8.9 Severability. If any provision of this Article VIII
shall be deemed invalid or inoperative, or if a court of competent jurisdiction
determines that any of the provisions of this Article VIII contravene public
policy, this Article VIII shall be construed so that the remaining provisions
shall not be affected, but shall remain in full force and effect, and any such
provisions which are invalid or inoperative or which contravene public policy
shall be deemed, without further action or deed by or on behalf of the
Corporation, to be modified,
26
amended and/or limited, but only to the extent necessary to render the same
valid and enforceable.
8.10 Nonexclusivity of Article VIII. The rights of a
Director or Officer (or any other person) granted under this Article VIII shall
not be deemed exclusive of any other rights to indemnification against
Liabilities or advancement of Expenses which the Director or Officer (or such
other person) may be entitled to under any written agreement, Board resolution,
vote of shareholders of the Corporation or otherwise, including, without
limitation, under the Statute. Nothing contained in this Article VIII shall be
deemed to limit the Corporation's obligations to indemnify against Liabilities
or advance Expenses to a Director or Officer under the Statute.
8.11 Contractual Nature of Article VIII; Repeal or
Limitation of Rights. This Article VIII shall be deemed to be a contract between
the Corporation and each Director and Officer and any repeal or other limitation
of this Article VIII or any repeal or limitation of the Statute or any other
applicable law shall not limit any rights of indemnification against Liabilities
or allowance of Expenses then existing or arising out of events, acts or
omissions occurring prior to such repeal or limitation, including, without
limitation, the right to indemnification against Liabilities or allowance of
Expenses for Proceedings commenced after such repeal or limitation to enforce
this Article VIII with regard to acts, omissions or events arising prior to such
repeal or limitation.
27
[Horizontally Set Certificate]
[RAYOVAC Logo] (R)
NUMBER
RV
RAYOVAC CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF WISCONSIN
COMMON STOCK CUSIP 755081 10 6
PAR VALUE $.01 SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS TRANSFERABLE
IN MILWAUKEE, WISCONSIN OR IN
NEW YORK, NEW YORK
................................................................................
THIS CERTIFIES THAT
IS THE OWNER OF
................................................................................
FULLY-PAID SHARES OF THE COMMON STOCK OF
Rayovac Corporation transferable on the books of the corporation in person or by
duly authorized attorney upon surrender of this certificate properly endorsed.
This certificate and the shares represented hereby are issued and shall be
subject to all the provisions of the Articles of Incorporation of the
corporation (a copy of which is on file with the Transfer Agent), to all of
which the holder of this certificate assents by acceptance hereof. This
certificate is not valid unless countersigned by the Transfer Agent and
registered by the Registrar.
WITNESS, the corporate seal of the Corporation and the signatures of
its duly authorized officers.
Dated:
RAYOVAC CORPORATION
CORPORATE
/s/ James A. Broderick SEAL /s/ David A. Jones
SECRETARY WISCONSIN CHAIRMAN, PRESIDENT
1988 AND CHIEF EXECUTIVE OFFICER
[Set on Side]
COUNTERSIGNED AND REGISTERED:
FIRSTAR TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
RAYOVAC CORPORATION
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ........................Custodian.........................
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act..........................................................
in common (State)
UNIF TRF MIN ACT - ...........................Custodian (until age....)
(Cust)
.........................under Uniform Transfers
(Minor)
to Minors Act..........................................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------
- --------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ----------------------------------------------------------------------- Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
----------------
X____________________________________________
X____________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
Signature(s) Guaranteed
By__________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
[DeWitt Ross & Stevens s.c. Letterhead]
Capitol Square Office West Office
Two East Mifflin Street Firstar Financial Centre
Suite 600 8000 Excelsior Drive, Suite 401
Madison, WI 53703-2865 Madison, WI 53717-1914
Fax: 608-252-9243 Fax: 608-831-2106
Tel: 608-255-8891 Tel: 608-831-2100
Please respond to: Capital Square Office
October 31, 1997
Rayovac Corporation
601 Rayovac Drive
Madison, WI 53711-2497
RE: Rayovac Corporation -- Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as special counsel to Rayovac Corporation (the "Company") in
connection with (i) the public offering by the Company of up to 6,700,000 shares
(the "Firm Shares") and up to 1,005,000 shares which are being sold subject to
over-allotment options granted by the Over-Allotment Selling Shareholders (as
that term is defined in the Registration Statement referenced below) to the
Underwriters (as defined below), of the Company's Common Stock, par value $.01
per share (the "Common Stock"), the Firm Shares, together with the shares
subject to such over-allotment options being referred to as the "Shares;" and
(ii) the concurrent direct offering of up to 270,000 shares of Common Stock (the
"Direct Shares") to employee participants in its Profit Sharing and Savings
Plan, as described in the Registration Statement (as defined below).
The Company and the Over-Allotment Selling Shareholders are offering the
Shares for sale in concurrent offerings in the United States and Canada (the
"U.S. Offering") through an underwriting syndicate (the "U.S. Underwriters")
represented by Merrill Lynch & Co.; Bear, Stearns & Co. Inc.; Donaldson,
Lufkin & Jenrette Securities Corporation and Smith Barney Inc. pursuant to the
U.S. Purchase Agreement (the "U.S. Purchase Agreement"), and outside the United
States and Canada (the "International Offering," and together with the U.S.
Offering, the "Offerings") through an underwriting syndicate (the "International
Managers," and together with the U.S. Underwriters, the "Underwriters")
represented by Merrill Lynch International; Bear, Stearns International Limited;
Donaldson, Lufkin & Jenrette Securities Corporation and Smith Barney Inc.
pursuant to the International Purchase Agreement (the "International Purchase
Agreement," and together with the U.S. Purchase Agreement, the "Purchase
Agreements").
[DeWitt Ross & Stevens s.c. Letterhead]
Rayovac Corporation
October 31, 1997
Page 2
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Securities Act").
In connection with this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of (i) the Registration Statement
on Form S-1 (File No. 333-35181) as filed with the Securities and Exchange
Commission (the "Commission") on September 8, 1997 under the Securities Act, and
Amendment No. 1 thereto, filed with the Commission on October 31, 1997 (which
Registration Statement, as so amended, being hereinafter referred to as the
"Registration Statement"); (ii) a specimen certificate representing the Common
Stock; (iii) the Amended and Restated Articles of Incorporation and the Amended
and Restated By-Laws of the Company, to be effective prior to the offering of
the Shares, filed as exhibits to the Registration Statement; (iv) the Purchase
Agreements in the form as of the date hereof; and (v) certain resolutions of
the Board of Directors of the Company relating to the issuance and sale of the
Shares, the Direct Shares and related matters. We have also examined such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such copies. As to any facts material to the
opinions expressed herein which we have not independently established or
verified, we have relied upon statements and representations of officers and
other representatives of the Company and others.
We are admitted to the practice of law in the State of Wisconsin, and the
opinion expressed herein is limited to the federal laws of the United States of
America and the laws of the State of Wisconsin.
Based upon and subject to the foregoing, we are of the opinion that the Shares
and the Direct Shares have been duly authorized for issuance and sale and that,
[DeWitt Ross & Stevens s.c. Letterhead]
Rayovac Corporation
October 31, 1997
Page 3
when the Shares are issued and sold by the Company in accordance with the
Purchase Agreements and the Direct Shares are issued and sold in accordance with
the procedures set forth in the Registration Statement, the Shares and the
Direct Shares will be validly issued, fully paid and nonassessable, except to
the extent that such Shares and Direct Shares are assessable as provided in
Section 180.0622 of the Wisconsin Business Corporation Law.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference to our name under the
caption "Legal Matters" in the Registration Statement. In giving this consent,
we do not thereby admit that we are included in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
This opinion is furnished by us, as special counsel to the Company, in
connection with the filing of the Registration Statement and, except as
provided in the immediately preceding paragraph, is not to be used, circulated,
quoted or otherwise referred to for any other purpose or relied upon by any
other person without our prior express written permission.
Sincerely,
/s/ DeWitt Ross & Stevens s.c.
THE 1997 RAYOVAC INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the Plan is to support the Company's ongoing efforts to
develop and retain leaders of exceptional talent and to provide the Company with
the ability to provide incentives more directly linked to the profitability of
the Company's businesses and to increases in shareholder value.
For purposes of the Plan, the following terms are defined as set forth
below:
a. "Annual Incentive Award" means an Incentive Award made pursuant to
Section 5(a)(v) with a Performance Cycle of one year or less.
b. "Awards" mean grants under this Plan of Incentive Awards, Stock
Options, Stock Appreciation Rights, Restricted Stock or Other Stock-Based
Awards.
c. "Board" means the Board of Directors of the Company.
d. "Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor thereto.
e. "Commission" means the Securities and Exchange Commission or any
successor agency.
f. "Committee" means the Compensation Committee of the Board or a
subcommittee thereof, any successor thereto or such other committee or
subcommittee as may be designated by the Board to administer the Plan.
g. "Common Stock" or "Stock" means the Common Stock of the Company.
h. "Company" means Rayovac Corporation, a corporation organized under
the laws of the State of Wisconsin, or any successor thereto.
i. "Economic Value Added(TM)" means net after-tax operating profit less
the cost of capital.
j. "Exercise Period" means the 60-day period from and after a Change in
Control.
k. "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor thereto.
l. "Fair Market Value" means, as of any given date, the mean between
the highest and lowest reported sales prices of the Common Stock on the New York
Stock Exchange--Composite Transactions or, if no such sale of Common Stock is
reported on such date, the fair market value of the Stock as determined by the
Committee in good faith.
m. "Incentive Award" means any Award that is either an Annual Incentive
Award or a Long-Term Incentive Award.
n. "Incentive Stock Option" means any Stock Option that complies with
Section 422 of the Code.
o. "Long-Term Incentive Award" means an Incentive Award made pursuant
to Section 5(a)(v) with a Performance Cycle of more than one year.
p. "Nonqualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
q. "Other Stock-Based Award" means an Award made pursuant to Section
5(a)(iv).
r. "Performance Cycle" means the period selected by the Committee
during which the performance of the Company or any subsidiary, affiliate or unit
thereof or any individual is measured for the purpose of determining the extent
to which an Award subject to Performance Goals has been earned.
s. "Performance Goals" mean the objectives for the Company or any
subsidiary or affiliate or any unit thereof or any individual that may be
established by the Committee for a Performance Cycle with respect to any
performance-based Awards contingently awarded under the Plan. The Performance
Goals for Awards that are intended to constitute "performance-based"
compensation within the meaning of Section 162(m) of the Code shall be based on
one or more of the following criteria: earnings per share, total shareholder
return, operating income, net income, cash flow, return on equity, return on
capital, earnings before interest, taxes, depreciation and amortization
("EBITDA"), and Economic Value Added(TM).
t. "Plan" means this 1997 Rayovac Incentive Plan, as amended from time
to time.
u. "Restricted Period" means the period during which an Award may not
be sold, assigned, transferred, pledged or otherwise encumbered.
v. "Restricted Stock" means an Award of shares of Common Stock pursuant
to Section 5(a)(iii).
w. "Spread Value" means, with respect to a share of Common Stock
subject to an Award, an amount equal to the excess of the Fair Market Value, on
the date such value is determined, over the Award's exercise or grant price, if
any.
x. "Stock Appreciation Right" or "SAR" means a right granted pursuant
to Section 5(a)(ii).
y. "Stock Option" means an option granted pursuant to Section 5(a)(i).
In addition, the terms "Business Combination," "Change in Control," "Change in
Control Price," "Incumbent Board," "Outstanding Company Common Stock,"
"Outstanding Company Voting Securities" and "Person" have the meanings set forth
in Section 6.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Committee, which shall have the
power to interpret the Plan and to adopt such rules and guidelines for carrying
out the Plan as it may deem appropriate. The Committee shall have the authority
to adopt such modifications, procedures and subplans as may be necessary or
desirable to comply with the laws, regulations, compensation practices and tax
and accounting principles of the countries in which the Company, a subsidiary or
an affiliate may operate to assure the viability of the benefits of Awards made
to individuals employed in such countries and to meet the objectives of the
Plan.
Subject to the terms of the Plan, the Committee shall have the
authority to determine those individuals eligible to receive Awards and the
amount, type and terms of each Award and to establish and administer any
Performance Goals applicable to such Awards, but, at the discretion of the
Board, such determinations may be made subject to ratification by the Board.
The Committee may delegate its authority and power under the Plan to
one or more officers of the Company, subject to guidelines prescribed by the
Committee and approved by the Board, with respect to participants who are not
subject to Section 16 of the Exchange Act.
Any determination made by the Committee or pursuant to delegated
authority in accordance with the provisions of the Plan with respect to any
Award shall be made in the sole discretion of the Committee or such delegate,
and all decisions made by the Committee or any appropriately designated officer
pursuant to the provisions of the Plan shall be final and binding on all
persons, including the Company and Plan participants, but subject to
ratification by the Board if the Board so provides.
SECTION 3. ELIGIBILITY.
All employees of the Company, its subsidiaries and affiliates, as well
as non-employee members of the Board of Directors of the Company, its
subsidiaries or affiliates are eligible to be granted Awards under the Plan.
SECTION 4. COMMON STOCK SUBJECT TO PLAN.
The total number of shares of Common Stock reserved and available for
distribution pursuant to the Plan shall be 3,000,000 shares, all of which may be
issued pursuant to the exercise of Stock Options awarded under the Plan. If any
Award is exercised, cashed out or terminates or expires without a payment being
made to the participant in the form of Common Stock, the shares subject to such
Award, if any, shall again be available for distribution in connection with
Awards under the Plan. Any shares of Common Stock that are used by a participant
as full or partial payment of withholding or other taxes or as payment for the
exercise or conversion price of an Award shall be available for distribution in
connection with Awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, split-up or other change in
corporate structure affecting the Common Stock after adoption of the Plan by the
Board, the Board is authorized to make substitutions or adjustments in the
aggregate number and kind of shares reserved for issuance under the Plan, in the
number, kind and price of shares subject to outstanding Awards and in the Award
limits set
forth in Section 5; provided, however, that any such substitutions or
adjustments shall be, to the extent deemed appropriate by the Board, consistent
with the treatment of shares of Common Stock not subject to the Plan, and that
the number of shares subject to any Award shall always be a whole number.
SECTION 5. AWARDS.
(a) General. The types of Awards that may be granted under the Plan are
set forth below. Awards may be granted singly, in combination or in tandem with
other Awards.
(i) STOCK OPTIONS. A Stock Option represents the right to
purchase a share of Stock at a predetermined grant price. Stock Options granted
under this Plan may be in the form of Incentive Stock Options or Nonqualified
Stock Options, as specified in the Award agreement. The term of each Stock
Option shall be set forth in the Award agreement, but no Incentive Stock Option
shall be exercisable more than ten years after the grant date. The grant price
per share of Common Stock purchasable under an Incentive Stock Option shall not
be less than 100% of the Fair Market Value on the date of grant. Subject to the
applicable Award agreement, Stock Options may be exercised, in whole or in part,
by giving written notice of exercise to the Company specifying the number of
shares to be purchased. Such notice shall be accompanied by payment in full of
the purchase price by certified or bank check or such other instrument as the
Company may accept (including a copy of instructions to a broker or bank
acceptable to the Company to deliver promptly to the Company an amount of sale
or loan proceeds sufficient to pay the purchase price). As determined by the
Committee, payment in full or in part may also be made in the form of Common
Stock already owned by the optionee valued at the Fair Market Value on the date
the Stock Option is exercised; provided, however, that such Common Stock shall
not have been acquired within the preceding six months upon the exercise of a
Stock Option or stock unit or similar Award granted under the Plan or any other
plan maintained at any time by the Company or any subsidiary.
(ii) STOCK APPRECIATION RIGHTS. An SAR represents the right to
receive a payment, in cash, shares of Common Stock or both (as determined by the
Committee), equal to the Spread Value on the date the SAR is exercised. The
grant price of an SAR shall be set forth in the applicable Award agreement.
Subject to the terms of the applicable Award agreement, an SAR shall be
exercisable, in whole or in part, by giving written notice of exercise to the
Company.
(iii) RESTRICTED STOCK. Shares of Restricted Stock are shares
of Common Stock that are awarded to a participant and that during the Restricted
Period may be forfeitable to the Company upon such conditions as may be set
forth in the applicable Award agreement. Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered during the Restricted
Period. Except as provided in this subsection (iii) and in the applicable Award
agreement, a participant shall have all the rights of a holder of Common Stock,
including the rights to receive dividends and to vote during the Restricted
Period. Dividends with respect to Restricted Stock that are payable in Common
Stock shall be paid in the form of Restricted Stock.
(iv) OTHER STOCK-BASED AWARDS. Other Stock-Based Awards are
Awards, other than Stock Options, SARs or Restricted Stock, that are denominated
in, valued in whole or in part by reference to, or otherwise based on or related
to, Common Stock. The purchase, exercise, exchange or conversion of Other
Stock-Based Awards granted under this subsection (iv) shall be on such terms and
conditions and by such methods as shall be specified by the Committee.
(v) INCENTIVE AWARDS. Incentive Awards are performance-based
Awards that are expressed in U.S. currency. Incentive Awards shall either be
Annual Incentive Awards or Long-Term Incentive Awards.
(b) Maximum Awards. The total number of shares of Restricted Stock and
other shares of Common Stock subject to or underlying Stock Options, SARs and
Other Stock-Based Awards awarded to any participant during the term of this Plan
shall not exceed 25% of the shares of Common Stock originally reserved for
distribution pursuant to the Plan. An Annual Incentive Award paid to a
participant with respect to any Performance Cycle shall not exceed $1,000,000. A
Long-Term Incentive Award paid to a participant with respect to any Performance
Cycle shall not exceed $1,000,000 times the number of years in the Performance
Cycle. An amount not in excess of 25% of the shares of Common Stock originally
reserved for distribution pursuant to the Plan may be issued pursuant to
Restricted Stock Awards and Other Stock-Based Awards, except that Other
Stock-Based Awards with values based on Spread Values shall not be included in
this limitation.
(c) Performance-Based Awards. Any Awards granted pursuant to the Plan
may be in the form of performance-based Awards through the application of
Performance Goals and Performance Cycles.
SECTION. 6. CHANGE IN CONTROL PROVISIONS.
(a) Impact of Event. Notwithstanding any other provision of the Plan to
the contrary, in the event of a Change in Control:
(i) All Stock Options and Stock Appreciation Rights
outstanding as of the date such Change in Control occurs shall become fully
vested and exercisable.
(ii) The restrictions and other conditions applicable to any
Restricted Stock or Other Stock-Based Awards, including vesting requirements,
shall lapse, and such Awards shall become free of all restrictions and fully
vested.
(iii) The value of all outstanding Stock Options, Stock
Appreciation Rights, Restricted Stock and Other Stock-Based Awards shall, unless
otherwise determined by the Committee at or after grant, be cashed out on the
basis of the "Change in Control Price," as defined in Section 6(c), as of the
date such Change in Control occurs or such other date as the Committee may
determine prior to the Change in Control.
(iv) Any Incentive Awards relating to Performance Cycles prior
to the Performance Cycle in which the Change in Control occurs that have been
earned but not paid shall become immediately payable in cash. In addition, each
participant who has been awarded an Incentive Award shall be deemed to
have earned a pro rata Incentive Award equal to the product of (y) such
participant's maximum award opportunity for such Performance Cycle, and (z) a
fraction, the numerator of which is the number of full or partial months that
have elapsed since the beginning of such Performance Cycle to the date on which
the Change in Control occurs, and the denominator of which is the total number
of months in such Performance Cycle.
(b) Definition of Change in Control. A "Change in Control" means the
happening subsequent to completion of the initial public offering of shares of
Stock of the Company of any of the following events:
(i) The acquisition, other than in a transaction approved by
the Incumbent Board, by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person")) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (A) the then outstanding shares of Common Stock (the
"Outstanding Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change in
Control: (1) any acquisition directly from the Company, (2) any acquisition by
the Company, (3) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (4) any acquisition by any corporation pursuant to a transaction
described in clauses (A), (B) and (C) of paragraph (iii) of this Section 6(b);
or
(ii) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to such effective date whose election, or
nomination for election by the stockholders of the Company, was approved by a
vote of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(iii) Approval by the stockholders of the Company of a
reorganization, merger, share exchange or consolidation (a "Business
Combination"), unless, in each case following such Business Combination, (A) all
or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a result of
such transaction owns the Company through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities,
as the case may be, (B) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation except to the extent that
such Person owned 25% or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities prior to the Business Combination and (C)
at least a majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(iv) Approval by the stockholders of the Company of (A) a
complete liquidation or dissolution of the Company or (B) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation with respect to which, following such sale or other
disposition, (1) more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (2) less than 25% of,
respectively, the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by any Person (excluding any
employee benefit plan (or related trust) of the Company or such corporation),
except to the extent that such Person owned 25% or more of the Outstanding
Company Common Stock or Outstanding Company Voting Securities prior to the sale
or disposition and (3) at least a majority of the members of the board of
directors of such corporation were members of the Incumbent Board at the time of
the execution of the initial agreement, or of the action of the Board, providing
for such sale or other disposition of assets of the Company or were elected,
appointed or nominated by the Board.
(c) Change in Control Price. "Change in Control Price" means the
highest price per share paid in any transaction reported on the New York Stock
Exchange-Composite Transactions or paid or offered in any bona fide transaction
related to a potential or actual change in control of the Company at any time
during the preceding 60-day period as determined by the Committee, except that,
in the case of Incentive Stock Options, unless the Committee otherwise provides,
such price shall be based only on transactions reported for the date on which
such Incentive Stock Options are cashed out.
(d) Notwithstanding any other provision of this Plan, upon a Change in
Control, unless the Committee shall determine otherwise at grant, or after grant
but before the Change in Control, an Award recipient shall have the right, by
giving notice to the Company within the
Exercise Period, to elect to surrender all or part of the Stock Option, SAR or
Other Stock-Based Award to the Company and to receive in cash, within 30 days of
such notice, an amount equal to the amount by which the "Change in Control
Price" on the date of such notice shall exceed the exercise or grant price under
such Award, multiplied by the number of shares of Stock as to which the right
granted under this Section 6 shall have been exercised.
(e) Notwithstanding the foregoing, if any right granted pursuant to
this Section 6 would make a Change in Control transaction ineligible for pooling
of interests accounting under generally accepted accounting principles that but
for this Section 6 would otherwise be eligible for such accounting treatment,
the Committee shall have the ability to substitute the cash payable pursuant to
this Section 6 with Common Stock with a Fair Market Value equal to the cash that
would otherwise be payable hereunder.
SECTION 7. PLAN AMENDMENT AND TERMINATION.
The Board may amend or terminate the Plan at any time, provided that no
such amendment shall be made without stockholder approval if such approval is
required under applicable law, or if such amendment would increase the total
number of shares of Common Stock that may be distributed under the Plan.
Except as set forth in any Award agreement, no amendment or termination
of the Plan may materially and adversely affect any outstanding Award under the
Plan without the Award recipient's consent.
SECTION 8. PAYMENTS AND PAYMENT DEFERRALS.
Payment of Awards may be in the form of cash, Stock, other Awards or
combinations thereof as the Committee shall determine, and with such
restrictions as it may impose. The Committee, either at the time of grant or by
subsequent amendment, may require or permit deferral of the payment of Awards
under such rules and procedures as it may establish. It also may provide that
deferred settlements include the payment or crediting of interest or other
earnings on the deferred amounts, or the payment or crediting of dividend
equivalents where the deferred amounts are denominated in Common Stock
equivalents.
SECTION 9. DIVIDENDS AND DIVIDEND EQUIVALENTS.
The Committee may provide that any Awards under the Plan earn dividends
or dividend equivalents. Such dividends or dividend equivalents may be paid
currently or may be credited to a participant's Plan account. Any crediting of
dividends or dividend equivalents may be subject to such restrictions and
conditions as the Committee may establish, including reinvestment in additional
shares of Common Stock or Common Stock equivalents.
SECTION 10. TRANSFERABILITY.
Except to the extent permitted by the Award agreement, either initially
or by subsequent amendment, Awards shall not be transferable or assignable other
than by will or the laws of descent and distribution, and shall be exercisable
during the lifetime of the recipient only by him.
SECTION 11. AWARD AGREEMENTS.
Each Award under the Plan shall be evidenced by a written agreement
(which need not be signed by the recipient unless otherwise specified by the
Committee) that sets forth the terms, conditions and limitations for each Award.
Such terms may include, but are not limited to, the term of the Award, vesting
and forfeiture provisions, and the provisions applicable in the event the
recipient's employment terminates. The Committee may amend an Award agreement,
provided that no such amendment may materially and adversely affect an Award
without the Award recipient's consent.
SECTION 12. UNFUNDED STATUS OF PLAN.
It is presently intended that the Plan constitute an "unfunded" plan
for incentive and deferred compensation. The Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Common Stock or make payments; provided, however, that,
unless the Committee otherwise determines, the existence of such trusts or other
arrangements is consistent with the "unfunded" status of the Plan.
SECTION 13. GENERAL PROVISIONS.
(a) The Committee may require each person acquiring shares of Common
Stock pursuant to an Award to represent to and agree with the Company in writing
that such person is acquiring the shares without a view to the distribution
thereof. The certificates for such shares may include any legend that the
Committee deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Common Stock or other securities
delivered under the Plan shall be subject to such stock transfer orders and
other restrictions as the Committee may deem advisable under the rules,
regulations and other requirements of the Commission, any stock exchange upon
which the Common Stock is then listed and any applicable Federal, state or
foreign securities law, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Company, a
subsidiary or an affiliate from adopting other or additional compensation
arrangements for its employees or directors.
(c) The adoption of the Plan shall not confer upon any employee any
right to continued employment nor shall it interfere in any way with the right
of the Company, a subsidiary or an affiliate to terminate the employment of any
employee at any time.
(d) No later than the date as of which an amount first becomes
includible in the gross income of the participant for Federal income tax
purposes with respect to any Award under the Plan, the participant shall pay to
the Company, or make arrangements satisfactory to the Company regarding the
payment of, any Federal, state, local or foreign taxes of any kind required by
law to be withheld with respect to such amount. Unless otherwise determined by
the Committee, withholding obligations arising from an Award may be settled with
Common Stock, including Common Stock that is part of, or is received upon
exercise or conversion of, the Award that gives rise to the withholding
requirement. The obligations of the Company under the Plan shall be conditional
on such payment or arrangements, and the Company, its subsidiaries and its
affiliates shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment otherwise due to the participant. The Committee may
establish such procedures as it deems appropriate, including the making of
irrevocable elections, for the settling of withholding obligations with Common
Stock.
(e) On receipt of written notice of exercise, the Committee may elect
to cash out all or a portion of the shares of Common Stock for which a Stock
Option is being exercised by paying the optionee an amount, in cash or Common
Stock, equal to the Spread Value of such shares on the date such notice of
exercise is received.
(f) The Plan and all Awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Wisconsin.
(g) If any provision of the Plan is held invalid or unenforceable, the
invalidity or unenforceability shall not affect the remaining parts of the Plan,
and the Plan shall be enforced and construed as if such provision had not been
included.
(h) The Plan shall be effective on September 5, 1997. Except as
otherwise provided by the Board, no Awards shall be granted after August 31,
2007, but any Awards granted theretofore may extend beyond that date.
RAYOVAC PROFIT SHARING AND SAVINGS PLAN
Restated Effective as of August 1, 1997
Plan Year Ends December 31
RAYOVAC PROFIT SHARING AND SAVINGS PLAN
TABLE OF CONTENTS
Page
Article I. The Plan........................................................................... 1
1.1 Establishment and Amendment of the Plan........................................ 1
1.2 Applicability of the Plan...................................................... 1
1.3 Purpose of the Plan............................................................ 1
Article II. Definitions........................................................................ 2
2.1 Definitions.................................................................... 2
2.2 Gender and Number.............................................................. 6
Article III. Participation and Service.......................................................... 7
3.1 Participation.................................................................. 7
3.2 Duration of Participation...................................................... 7
3.3 Reemployment................................................................... 7
3.4 Leased Employees............................................................... 7
Article IV. Contributions...................................................................... 8
4.1 Employer Contributions......................................................... 8
4.2 Allocation of Employer Contributions........................................... 9
4.3 Before-Tax Employee Contributions.............................................. 9
4.4 Limitations on Contributions................................................... 10
4.5 Limitations on Annual Additions................................................ 10
4.6 Rollover Contributions......................................................... 13
4.7 Maximum Deferral Percentage.................................................... 13
4.8 Prospective Reduction of Before-Tax Employee
Contributions................................................................. 15
4.9 Reduction After Before-Tax Employee Contributions
Have Been Made................................................................ 16
4.10 Nondiscrimination Limitations.................................................. 16
4.11 15% Limitation................................................................. 16
Article V. Vesting in Accounts................................................................ 17
5.1 Before-Tax Employee, Employer and Rollover
Contributions Accounts........................................................ 17
Article VI. Distributions and Withdrawals...................................................... 18
6.1 Distribution Upon Termination.................................................. 18
6.2 Distribution Upon Participant's Death.......................................... 18
6.3 Commencement of Distributions.................................................. 18
6.4 Method of Distribution......................................................... 19
6.5 In-Service Withdrawals......................................................... 19
6.6 Hardship Withdrawals........................................................... 20
6.7 Required Distributions......................................................... 21
6.8 Withholding Taxes.............................................................. 23
6.9 Rollover Distributions......................................................... 23
Article VII. Investment Elections............................................................... 25
7.1 Investment of Contributions.................................................... 25
7.2 Investment Elections........................................................... 25
7.3 Liability for Investment Elections............................................. 25
Article VIII. Accounts and Records of the Plan................................................... 26
8.1 Accounts and Records........................................................... 26
8.2 Trust Fund..................................................................... 26
8.3 Allocation of Income to Accounts............................................... 26
8.4 Valuation of Qualifying Employer Securities.................................... 26
Article IX. Financing.......................................................................... 27
9.1 Financing...................................................................... 27
9.2 Contributions.................................................................. 27
9.3 Nonreversion................................................................... 27
9.4 Rights in the Trust Fund....................................................... 27
Article X. Administration..................................................................... 28
10.1 Plan Administrator and Fiduciary............................................... 28
10.2 Expenses....................................................................... 28
10.3 Administration................................................................. 28
10.4 No Enlargement of Employee Rights.............................................. 29
10.5 Appeals from Denial of Claims.................................................. 29
10.6 Notice of Address and Missing Persons.......................................... 30
10.7 Data and Information for Benefits.............................................. 30
10.8 Indemnity for Liability........................................................ 30
10.9 Effect of a Mistake............................................................ 31
ii
Article XI. Amendment and Termination.......................................................... 32
11.1 Amendment and Termination...................................................... 32
11.2 Limitations on Amendments...................................................... 32
Article XII. Top-Heavy Provisions............................................................... 33
12.1 Application of Top-heavy Provisions............................................ 33
12.2 Definitions.................................................................... 33
12.3 Minimum Contribution........................................................... 36
12.4 Limit on Annual Additions: Combined Plan Limit................................ 36
12.5 Collective Bargaining Agreements............................................... 37
Article XIII. Miscellaneous...................................................................... 38
13.1 Beneficiary Designation........................................................ 38
13.2 Incompetency................................................................... 38
13.3 Nonalienation.................................................................. 39
13.4 Applicable Law................................................................. 39
13.5 Severability................................................................... 39
13.6 No Guarantee................................................................... 39
13.7 Merger, Consolidation or Transfer.............................................. 40
APPENDIX A........................................................................................A-1
iii
RAYOVAC PROFIT SHARING AND SAVINGS PLAN
Article I. The Plan
-------------------
1.1 Establishment and Amendment of the Plan. Rayovac Corporation (the
"Company") maintains this profit sharing plan for the benefit of its Eligible
Employees. The Plan was established effective as of July 1, 1983 and was last
restated effective as of July 1, 1987. The Plan is hereby further amended and
restated as set forth herein effective as of August 1, 1997.
1.2 Applicability of the Plan. The provisions of the Plan as set forth
herein are applicable only to persons who are Eligible Employees on or after
August 1, 1997, except as specifically provided herein or as otherwise required
by law. Except as provided, any person who was covered under the Plan as in
effect on July 31, 1997, whose service terminated prior to August 1, 1997 and
who was entitled to benefits under the provisions of the Plan as in effect on
July 31, 1997, shall continue to be entitled to the same amount of benefits
without change under the Plan.
1.3 Purpose of the Plan. The purposes of the Plan are to enable
Participants to save on a tax-deferred basis for their retirement and to share
in the profitable operations of the Company. The Plan is intended to qualify as
a profit sharing plan under the Code and shall be interpreted so as to comply
with the applicable requirements thereof, where such requirements are not
clearly contrary to its express terms.
1
Article II. Definitions
-----------------------
2.1 Definitions. Whenever used in the Plan, the following terms shall
have the respective meanings set forth below unless otherwise expressly provided
herein, and when the defined meaning is intended the term is capitalized.
(a) "Account" means the separate account maintained for each
Participant which represents his total proportionate
interest in the Trust Fund as of any Valuation Date and
which consists of the sum of the following subaccounts:
(1) "After-Tax Contributions Account" means that portion
of such Participant's Account which evidences the
value of any after-tax contributions made by him to
the Plan, or any predecessor plan, including any
gains or losses of the Trust Fund attributable
thereto;
(2) "Before-Tax Employee Contributions Account" means
that portion of such Participant's Account which
evidences the value of the Before-Tax Employee
Contributions made on his behalf by the Company,
including any gains and losses of the Trust Fund
attributable thereto;
(3) "Employer Contributions Account" means that portion
of such Participant's Account which evidences the
value of the Employer Contributions made on his
behalf by the Company, including any gains and
losses of the Trust Fund attributable thereto; and
(4) "Rollover Contributions Account" means that portion
of such Participant's Account which evidences the
value of the rollover contributions made by him to
the Plan, including any gains or losses of the Trust
Fund attributable thereto.
(b) "Act" means the Employee Retirement Income Security Act
of 1974, as amended.
(c) "Affiliate" means--
2
(1) any corporation which together with the Company is a
member of a "controlled group" of corporations;
(2) any organization which together with the Company is
under "common control"; or
(3) any organization which together with the Company is
an "affiliated service group";
as those terms are used in sections 414(b), 414(c), and
414(m) of the Code.
(d) "Before-Tax Employee Contributions" means the
contributions made by the Company on behalf of a
Participant pursuant to the Participant's election to
reduce Compensation as described in section 4.3.
(e) "Beneficiary" means the person described in section 13.1.
(f) "Board" means the Board of Directors of the Company.
(g) "Code" means the Internal Revenue Code of 1986, as
amended.
(h) "Company" means Rayovac Corporation, a Wisconsin
corporation.
(i) "Compensation" means as follows:
(1) for purposes of determining the amount of a
Participant's Before-Tax Employee Contributions
pursuant to section 4.3, his base salary (including
any paid leave), bonuses, commissions and overtime
and shift differential pay;
(2) for purposes of determining the amount of Employer
Contributions to be allocated on behalf of a
salaried Participant pursuant to sections 4.1 and
4.2, his base salary (including any paid leave); and
(3) for purposes of determining the amount of Employer
Contributions to be allocated on behalf of an hourly
3
Participant pursuant to sections 4.1 and 4.2, his
base pay (including any paid leave) for up to 40
hours per week; and
(4) for all other purposes of the Plan (except as
expressly provided otherwise herein), wages within
the meaning of Code section 3401(a) and all other
payments of compensation to an Eligible Employee by
an Employer (in the course of the Employer's trade
or business) for which the Employer is required to
furnish the Eligible Employee a written statement
under Code sections 6041(d), 6051(a)(3) and 6052.
The annual Compensation of each Participant taken into
account under the Plan for any year shall not exceed the
amount permitted pursuant to Code section 401(a)(17), as
adjusted for cost-of-living increases at such time and in
such manner as may be determined by the Secretary of the
Treasury. For purposes of calculating this maximum in any
Plan Year beginning prior to January 1, 1997, for any 5%
owner or highly compensated individual who is in the
group of 10 employees paid the greatest Compensation
during the year, pursuant to Code section 414(q)(6), the
Compensation of a spouse or a lineal descendant under age
19 before the end of the Plan Year shall be treated as if
paid to the employee.
(j) "Eligible Employee" means any person who is employed by
the Company or an Affiliate in a position that is
included within a participating group of employees as
identified in Appendix A of the Plan. Each participating
group of Eligible Employees shall be eligible to
participate in the Plan as of the applicable effective
date identified in Appendix A.
(k) "Employer Contributions" means the contributions made by
the Company on behalf of a Participant as described in
section 4.1.
(l) "Employment Commencement Date" means the first day on
which an Eligible Employee first performs an Hour of
Service for the Company or an Affiliate.
4
(m) "Excess Deferrals" means the amount of a Participant's
Before-Tax Employee Contributions plus amounts deferred
pursuant to plans or arrangements described under Code
section 401(k), 408(k), 408(p) or 403(b) that exceed the
limits described under Code section 402(g).
(n) "Investment Fund" means a subsection of the Trust Fund
which may be designated by the Trustees from time to
time.
(o) "Participant" means any Eligible Employee who has met,
and continues to meet, the eligibility requirements of
the Plan as set forth in section 3.1. Where appropriate,
this term also includes any former Eligible Employee,
Beneficiary, estate or alternate payee with an Account
balance.
(p) "Plan" means this Rayovac Profit Sharing and Savings
Plan.
(q) "Plan Administrator" means the entity which has been
designated as the "plan administrator" as provided in
section 10.1.
(r) "Plan Year" means the 12-consecutive-month period ending
each December 31.
(s) "Qualifying Employer Securities" means common stock of
the Company within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, section 407.
(t) "Trust Agreement" means any agreement establishing a
trust, which forms part of the Plan, to receive, hold,
invest and dispose of the Trust Fund.
(u) "Trustee" means the corporation, or individual or
individuals, or combination thereof, acting as trustees
under the Trust Agreement at any time of reference.
(v) "Trust Fund" means the assets of every kind and
description held under the Trust Agreement.
(w) "Valuation Date," means the last day of the Plan Year and
each business day of a Plan Year.
5
2.2 Gender and Number. Unless the context clearly requires otherwise,
the masculine pronoun whenever used shall include the feminine and neuter
pronoun, and the singular shall include the plural.
6
Article III. Participation and Service
--------------------------------------
3.1 Participation.
(a) Each Eligible Employee who was eligible to participate in
the Plan as of July 31, 1997 shall remain eligible to
participate in the Plan.
(b) Each Eligible Employee (i) whose Employment Commencement
Date was on or after January 1, 1997 and prior to August
1, 1997, or (ii) who becomes an Eligible Employee
effective as of August 1, 1997, shall participate in the
Plan as of August 1, 1997.
(c) Each employee who becomes an Eligible Employee on or
after August 1, 1997 shall participate in the Plan as of
the January 1 next following his Employment Commencement
Date.
(d) Each Eligible Employee who is eligible to participate in
the Plan in accordance with this section 3.1 may make an
election to have Before-Tax Employee Contributions made
on his behalf in accordance with section 4.3. Such
election may be made upon first becoming eligible to
participate in the Plan or as of the first day of any
subsequent month.
3.2 Duration of Participation. A Participant shall continue to be a
Participant until he terminates his employment with the Company or an Affiliate
or, if earlier, the date he no longer is an Eligible Employee; thereafter, he
shall be a Participant for as long as he has an Account balance.
3.3 Reemployment. If a Participant terminates employment with the
Company or an Affiliate and subsequently resumes such employment, the rehired
employee shall resume participation in the Plan as the first day of the month
following his date of rehire; provided he is reemployed as an Eligible Employee.
3.4 Leased Employees. A person who is a "leased employee" within the
meaning of Code sections 414(n) and (o) shall not be eligible to participate in
the Plan, but in the event such a person was participating or subsequently
becomes eligible to participate herein, credit shall be given for the person's
service as a leased employee toward completion of the Plan's eligibility and
vesting requirements, including any service for an Affiliate.
7
Article IV. Contributions
-------------------------
4.1 Employer Contributions. A "qualifying Participant" is a Participant
who is in active employment status, as determined by the Plan Administrator, on
the date the contribution is made.
(a) Fixed Contributions.
-------------------
(1) Salaried Employees. For each pay period during a
Plan Year, the Company shall make a contribution to
the Plan on behalf of each qualifying Participant
who is a salaried employee. A Participant's age, for
purposes of this contribution, shall be determined
as of each January 1. The portion of this
contribution which will be allocated to the Account
of each such qualifying Participant shall equal the
following:
(A) If the Participant has not yet attained age 35,
the contribution allocated shall equal 2% of
his Compensation for such pay period.
(B) If the Participant is age 35 through age 44,
the contribution allocated shall equal 3% of
his Compensation for such pay period.
(C) If the Participant is age 45 through age 49,
the contribution allocated shall equal 4% of
his Compensation for such pay period.
(D) If the Participant is age 50 or older, the
contribution allocated shall equal 5% of his
Compensation for such pay period.
(2) Hourly Employees. For each pay period during a Plan
Year, the Company shall make a contribution to the
Plan on behalf of each qualifying Participant who is
an hourly employee. The portion of this contribution
which will be allocated to the Account of each such
qualifying Participant shall equal 2% of the
Participant's Compensation for the pay period for
which the contribution is made.
8
(b) Discretionary Contributions. For any pay period during a
Plan Year, the Company may make discretionary Employer
Contributions on behalf of each Participant who is a
qualifying Participant during the pay period for which
the contribution is made. Any such Employer Contributions
under the Plan are completely and totally within the
Company's discretion. The portion of such Employer
Contribution, if any, allocated to the Account of a
qualifying Participant shall be a percentage of a
Participant's Compensation during the pay period for
which the contribution is made.
(c) Profit Sharing Bonus Contributions. In addition to the
contributions specified in (a) above, the Company may
make profit sharing bonus contributions as the Company,
in its discretion, may determine. Such profit sharing
bonus contributions, if any, shall be allocated to the
Account of a qualifying Participant and shall be in an
amount equal to a fixed percent of the Participant's
Compensation for 12-month period which ends on the last
day of the calendar quarter prior to the date the
contribution is made.
(d) Any contributions by the Company pursuant to this section
4.1 shall be Employer Contributions and shall be paid to
the Trustee not later than the time prescribed by law for
the Company to obtain a federal income tax deduction for
the Plan Year for which such Employer Contributions are
made.
4.2 Allocation of Employer Contributions. Employer Contributions shall
be allocated to a Participant's Employer Contributions Account as of the date
determined by the Plan Administrator, which date shall be no later than as of
the last day of the Plan Year for which the Employer Contribution is made.
4.3 Before-Tax Employee Contributions. For each pay period, the Company
shall contribute to the Plan on behalf of the Participants an amount equal to
the Participants' Before-Tax Employee Contributions. Each Participant may elect,
on a form provided by the Plan Administrator, to reduce his Compensation by a
whole percentage of not less than 1% and not more than 15%, and to have the
amount by which his Compensation is reduced contributed on his behalf by the
Company as a Before-Tax Employee Contribution to the Plan. Such election may be
effective as of the first day of the payroll period concurrent with or
subsequent to the Participant first becoming eligible to participate, or as of
the first day of any subsequent month upon prior written notice to the Plan
Administrator. Such
9
Participant may elect on a form provided by the Plan Administrator to increase,
decrease, suspend or reinstate (within the percentage limits stated above) his
Compensation reductions effective as of the first day of any subsequent month
upon prior written notice to the Plan Administrator. Such elections shall be
effective only with respect to Compensation not yet earned as of the effective
dates of such elections. The Plan Administrator may adopt rules concerning the
administration of this section. The Before-Tax Employee Contributions made on
behalf of each Participant shall be paid by the Company to the Trustee on the
earliest date on which these amounts can be reasonably segregated from the
Company's general assets following the end of a pay period and allocated to the
Participant's Before-Tax Employee Contributions Account.
4.4 Limitations on Contributions.
----------------------------
(a) In no event shall the Company make Before-Tax Employee
Contributions for any calendar year, with respect to any
Participant, in excess of the limit of Code section
402(g) (as adjusted by the Secretary of the Treasury to
reflect increases in the cost of living).
(b) In the event that in any calendar year a Participant
makes Excess Deferrals to the Plan, such Participant may
request (no later than a date established by the Plan
Administrator) for the Plan to return such Excess
Deferrals to the Participant. Such request shall be made
on a form provided by the Plan Administrator which
specifies the Participant's Excess Deferrals for the
calendar year. Such request shall be accompanied by the
Participant's written statement that if such Excess
Deferrals are not distributed, his Before-Tax Employee
Contributions, when added to amounts deferred under other
plans or arrangements described under Code section
401(k), 408(k), 408(p) or 403(b), will exceed the limit
for such Participant under Code section 402(g). A
distribution of Excess Deferrals, plus earnings, shall be
made no later than April 15 of the calendar year
following the calendar year in which such Excess
Deferrals were made.
4.5 Limitations on Annual Additions.
-------------------------------
(a) Notwithstanding any provision of the Plan to the
contrary, annual additions to the Account of any
Participant for a Plan Year shall not exceed the lesser
of:
10
(1) $30,000 as adjusted pursuant to Code sections
415(c)(1)(A) and (d)(l); or
(2) 25% of the Participant's total compensation (as
defined in Code section 415(c)) for the limitation
year.
The term "annual additions" as used in this subsection
shall mean the total amount of Employer Contributions and
Before-Tax Employee Contributions for the limitation year
allocated to the Account of the Participant.
(b) The Plan is subject to the limitations on benefits and
contributions imposed by Code section 415 which are
incorporated herein by this reference. The limitation
year shall be the Plan Year. In the event that there are
multiple plans, if a Participant also participates in
another qualified defined contribution plan maintained by
the Company, then the sum of his annual additions (as
defined in Code section 415(c)) under this Plan and under
such other plan shall not exceed the limitations
described in subsection (a) of this section. Effective
for Plan Years prior to January 1, 2000, if a Participant
also participates in a defined benefit pension plan
maintained by the Company, the sum of (1) and (2) below
shall not exceed one (1.0):
(1) the sum of the projected annual benefits of the
Participant under all qualified defined benefit
plans of the Company determined as of any December
31, divided by the lesser of (i) the product of 1.4
times the maximum benefit allowable under Code
section 415(b)(1)(B) for such year, or (ii) the
product of 1.25 times the dollar limitation in
effect for such year under Code section
415(b)(1)(A), plus
(2) the sum of all annual additions to the Participant's
Account under this Plan and his accounts under all
other defined contribution plans maintained by the
Company, as of such December 31, divided by the sum
of the lesser of the following amounts for such year
and each prior year of service with the Company: (i)
the product of 1.4 times the maximum annual
11
additions allowable for such year under Code section
415(c)(1)(B), as applicable, or (ii) the product of
1.25 times the dollar limitation in effect for such
year under Code section 415(c)(1)(A).
(c) In the event that in any Plan Year either of the
limitations set forth in subsection (a) and (b) of this
section would otherwise be violated in the case of a
Participant after all adjustments in accrued benefits
provided for in any defined benefit pension plan of the
Company, then, in the following order, to the extent
necessary to satisfy such limitation:
(1) Any Before-Tax Employee Contributions by the
Participant for the Plan Year in excess of such
limitation shall be returned to the Participant
(together with any income allocable thereto for the
Plan Year to which such excess is attributable).
(2) Any Employer Contributions for the Plan Year on
behalf of the Participant in excess of such
limitation shall be allocated to other eligible
Participants' Accounts in the manner set forth in
section 4.1.
If any allocation pursuant to paragraph (2) above would
otherwise cause any limitation under this section 4.5 to
be violated with respect to any other Participant, then
such amount as may be necessary to satisfy such
limitation shall be allocated to other eligible
Participants' Accounts in the manner set forth in section
4.1. If any such allocation is not possible as a result
of the application of this section, then the otherwise
allocable amount shall be credited to a suspense account
and the amounts therein shall be allocable to all
eligible Participants' Accounts, subject to the following
conditions:
(i) amounts in the suspense account shall be allocated
to the Participants' Accounts at such time,
including termination of the Plan, as the foregoing
limitations permit,
12
(ii) except as provided in this paragraph (2), no
investment gains or losses shall be allocated to the
suspense account,
(iii) no further Employer Contributions shall be
permitted on behalf of the Participants until the
foregoing limitations permit their allocation to the
Participants' Accounts, and
(iv) upon termination of the Plan, any unallocated
amounts in the suspense account shall revert to the
Company.
4.6 Rollover Contributions. The Board, in writing and on a
nondiscriminatory basis, may designate employees of the Company or an Affiliate,
who participated in another retirement plan and trust qualified pursuant to Code
sections 401(a) and 501(a) (a "qualified plan"), as eligible to deposit in the
Trust Fund any portion of an eligible rollover distribution paid from another
qualified plan in a direct rollover pursuant to Code section 401(a)(31). Before
accepting a direct rollover, the Plan Administrator may require such
documentation and information as it deems necessary to reasonably conclude that
the distributing plan is qualified under Code section 401(a). If an employee who
deposited a direct rollover does not otherwise become a Participant, that
employee shall constitute a Participant only in relation to the amount deposited
as a direct rollover and earnings on such amount. Any contributions made
pursuant to this section 4.6 shall be allocated to a Participant's Rollover
Contributions Account.
4.7 Maximum Deferral Percentage.
(a) Notwithstanding any provision of the Plan to the
contrary, in no event may the Before-Tax Employee
Contributions made on behalf of all eligible Participants
who are highly compensated individuals with respect to
any Plan Year result in a deferral percentage for such
group of Participants which exceeds the greater of (1) or
(2) below:
(1) an amount equal to 125% of the deferral percentage
for all eligible Participants other than eligible
Participants who are highly compensated individuals;
or
(2) an amount that does not exceed 200% of the deferral
percentage for all eligible Participants other than
eligible Participants who are highly compensated
13
individuals, provided that the deferral percentage
of eligible Participants who are highly compensated
individuals does not exceed the deferral percentage
of eligible Participants other than eligible
Participants who are highly compensated individuals
by more than (i) 2 percentage points or (ii) such
lesser amount as the Secretary of the Treasury shall
prescribe to prevent the multiple use of this
alternative limitation with respect to any eligible
Participant who is a highly compensated individual.
(b) For purposes of the maximum deferral percentage described
in section 4.7(a), the following terms shall have the
following meanings:
(1) "Eligible Participant" means an Employee who is
eligible to participate in the Plan pursuant to
section 3.1 hereof, whether or not he actually
elects to have Before-Tax Employee Contributions
made on his behalf.
(2) Effective as of January 1, 1997, "highly compensated
individual" shall be determined pursuant to Code
section 414(q) and shall include any employee who:
(i) during the current or immediately preceding
Plan Year is or was at any time a 5% owner of
the Company or an Affiliate; or
(ii) for the preceding Plan Year, receives or
received Compensation from the Company or an
Affiliate in excess of $80,000 (or such higher
amount established by Code section 414(q)).
(3) "Deferral percentage" with respect to any specified
group of eligible Participants for a Plan Year shall
mean the average of the ratios (calculated
separately for each eligible Participant in the
group) of:
(i) the amount of the Before-Tax Employee
Contributions allocated to the Account of each
eligible Participant for such Plan Year, to
14
(ii) the eligible Participant' s deferral percentage
compensation for such Plan Year.
"Deferral percentage compensation," for purposes of
this subsection 4.7(b)(3), has the same meaning as
Compensation has under section 2.1(i)(4).
4.8 Prospective Reduction of Before-Tax Employee Contributions.
----------------------------------------------------------
(a) If it is determined by the Plan Administrator at any time
that the maximum deferral percentage described in section
4.7 could be exceeded with respect to any Plan Year, then
the Plan Administrator, in its discretion, may
prospectively reduce the amount of the Before-Tax
Employee Contributions allowed to be made on behalf of
the eligible Participants who are highly compensated
individuals. In such event, the highly compensated
individuals with respect to whom such reduction shall be
made and the amount of such reduction shall be determined
by reducing the maximum allowable Before-Tax Employee
Contributions with respect to eligible Participants who
are highly compensated individuals to such percentage (or
a smaller percentage, in the discretion of the Plan
Administrator) which will, when applied to all eligible
Participants who are highly compensated individuals,
result in the maximum deferral percentage limitation not
being exceeded and reducing Before-Tax Employee
Contributions in the case of each highly compensated
individual with respect to whom such reduced maximum
percentage is exceeded. Once a reduction has been made
hereunder, it shall remain in effect for the remainder of
the Plan Year, unless the Plan Administrator determines
that it is no longer necessary in order for the maximum
deferral percentage limitation to be met.
(b) If it is determined by the Plan Administrator at any time
that the 15% of aggregate Compensation limitation
described in section 4.11 could be exceeded with respect
to any Plan Year, then the Plan Administrator in its
discretion may prospectively reduce the amount of
Before-Tax Employee Contributions allowed to be made on
behalf of eligible Participants. In such event, the
extent of such reduction shall be determined by reducing
the amount of Before-Tax Employee Contributions
15
on behalf of each eligible Participant on a pro rata
basis, such that the sum of Before-Tax Employee
Contributions and Employer Contributions for all eligible
Participants does not exceed the 15% of aggregate
Compensation limitation described in section 4.11. Once a
reduction has been made hereunder, it shall remain in
effect for the remainder of the Plan Year, unless the
Plan Administrator determines that it is no longer
necessary in order for such limitation to be met.
4.9 Reduction After Before-Tax Employee Contributions Have Been Made.
In the event that, notwithstanding section 4.8(a), it is determined by the Plan
Administrator that the maximum deferral percentage described in section 4.7 has
been exceeded with respect to any Plan Year, then the amount of Before-Tax
Employee Contributions that have been made on behalf of the eligible
Participants who are highly compensated individuals shall be reduced in a manner
similar to that described in section 4.8(a), and the excess, to the extent
permitted under rules prescribed by the Secretary of the Treasury and determined
by the Plan Administrator (together with the income allocable thereto for the
Plan Year to which such excess is attributable), shall be distributed to the
affected highly compensated individuals.
4.10 Nondiscrimination Limitations. The limitations on contributions
prescribed in this Article IV are intended to conform with Code section 401(k),
which is hereby incorporated herein by reference. In the event that the Plan
Administrator determines that, in accordance with the Code and rules prescribed
by the Secretary of the Treasury, the limitations of section 401(k) (including,
but not limited to, any definitions related thereto) may be applied in a manner
different from that prescribed in this Article IV, the Plan Administrator, in
its discretion, may make appropriate adjustments.
4.11 15% Limitation. Notwithstanding anything in this Article IV to the
contrary, in no event shall the sum of Before-Tax Employee and Employer
Contributions by the Company exceed 15% of the aggregate Compensation of all of
the employees eligible to participate in this Plan. For purposes of this section
4.11, Compensation shall be reduced by any elective contributions made by the
Company on behalf of an Employee that are not includible in gross income under
Code section 125 or 401(k).
16
Article V. Vesting in Accounts
------------------------------
5.1 After-Tax, Before-Tax Employee, Employer and Rollover Contributions
Accounts. A Participant shall at all times be fully vested and have a
nonforfeitable interest in his After-Tax, Before-Tax Employee, Employer and
Rollover Contributions Accounts.
17
Article VI. Distributions and Withdrawals
-----------------------------------------
6.1 Distribution Upon Termination. Upon a Participant' s termination of
employment with the Company for any reason other than death, he shall be
entitled to receive a distribution of the entire amount credited to his Account.
6.2 Distribution Upon Participant's Death. Upon the death of a
Participant, his Beneficiary shall be entitled to receive a distribution of the
entire amount credited to the deceased Participant's Account.
6.3 Commencement of Distributions.
(a) Subject to the provisions of this section and section
6.7, distributions pursuant to section 6.1 shall be made
or commence to the Participant as soon as practicable
following his termination of employment; provided,
however, that if his Account balance exceeds $3,500
($5,000 effective January 1, 1998), then such
distribution shall not be made or commence to the
Participant without his consent at any time before April
1 of the calendar year immediately following the later of
the calendar year in which the Participant attains age
70-1/2 or retires.
(b) Unless a Participant elects otherwise, distribution of a
Participant's Account will begin not later than the 60th
day after the later of the close of the Plan Year in
which--
(1) he attains age 65; or
(2) his termination of employment occurs.
(c) Distributions pursuant to section 6.2 shall be made or
commence to the Beneficiary as provided in section 6.7.
(d) Account balances distributable hereunder shall continue
to accrue earnings and losses under section 8.4 pending
their distribution.
(e) Participant consent shall not be valid unless the Plan
Administrator provides the Participant with notice of his
right to defer distribution no less than 30 days and no
more than 90 days before the date of distribution.
Distribution,
18
however, may commence less than 30 days after such notice
is provided if (1) the notice clearly informs the
Participant that the Participant has a right to a period
of at least 30 days after receiving the notice to
consider whether or not to elect a distribution and (2)
the Participant, after receiving such notice,
affirmatively elects a distribution.
6.4 Method of Distribution.
(a) Form of Benefits. Distribution of a Participant's Account
balance, if it exceeds $3,500 ($5,000 effective January
1, 1998), prior to the commencement of distributions or
at the time of any prior distribution, shall occur in a
single lump sum.
(b) Mandatory Payments. The Plan Administrator shall direct
distribution in a single lump sum of any Participant's
Account that does not exceed $3,500 ($5,000 effective
January 1, 1998), prior to the commencement of
distributions or at the time of any prior distribution if
such Participant fails to direct a rollover within 30
days of being notified of his right to a direct rollover.
(c) Plan Administration Fees. The Plan Administrator may
charge the Participant's Account any and all fees
incurred by the Trust Fund with respect to distribution
of the Account.
6.5 In-Service Withdrawals.
(a) A Participant may withdraw any or all of his Account
balance attributable to after-tax contributions plus
earnings thereon as of any Valuation Date upon prior
written notice to the Plan Administrator.
(b) On or after attaining age 59-1/2, a Participant may
withdraw all or any portion of his Account upon prior
notice to the Plan Administrator. A Participant shall be
entitled to only one election pursuant to this section
6.5(b) in each Plan Year.
(c) If a Participant terminates employment and elects to
defer distribution of his Account, such Participant may
make a one-time election to withdraw a portion of his
Account. Any
19
subsequent withdrawal must be for the full remaining
balance of the Participant's Account.
6.6 Hardship Withdrawals. Subject to the approval of the Plan
Administrator, a Participant may withdraw all or any portion of his Before-Tax
Employee Contributions Account attributable to elective contributions, and any
earnings credited to such Account prior to January 1, 1989, if the withdrawal
results from a "financial hardship." A withdrawal will be deemed to result from
a financial hardship if the distribution:
(a) Is for the purpose of:
(1) The payment of medical expenses described in Code
section 213(d) incurred by the Participant, his
spouse or dependents or necessary for these persons
to obtain medical care described in Code section
213(d);
(2) Costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the
Participant;
(3) The payment of tuition and related educational fees
for the next 12 months of post-secondary education
for the Participant, his spouse or dependents;
(4) The need to prevent the eviction from, or mortgage
foreclosure of, the Participant's principal
residence; or
(5) Any other purpose specified by the Internal Revenue
Service as a deemed immediate and heavy financial
need; and
(b) Satisfies all the following:
(1) The distribution does not exceed the amount of the
financial need, including any amount necessary to
pay taxes or penalties reasonably anticipated to
result from the distribution;
(2) The financial need cannot be satisfied from other
resources that are readily available to the
employee; and
20
(3) The Plan Administrator reasonably relies upon the
employee's representation that the need cannot be
relieved:
(A) Through reimbursement or compensation by
insurance or otherwise;
(B) By reasonable liquidation of the assets of the
employee and his spouse and minor children, if
any, that are reasonably available to him to
the extent such liquidation would not in itself
cause an immediate and heavy financial need;
(C) By cessation of Before-Tax Employee
Contributions to the Plan; or
(D) By other distributions or nontaxable loans from
plans maintained by the Company or by any other
employer, or by borrowing from commercial
sources on reasonably commercial terms.
6.7 Required Distributions. Notwithstanding any of the preceding
provisions of this Article--
(a) In no event may the distribution of a Participant's
Account balance commence later than the April 1 of the
calendar year following the year in which the Participant
(1) attains age 70-1/2 or (2) retires.
(b) To comply with subsection (a), a Participant's Account
balance must be distributed, beginning not later than his
required beginning date, over the life of the Participant
or over the lives of the Participant and his Beneficiary,
or over a period not extending beyond the life expectancy
of the Participant or the life expectancy of the
Participant and his Beneficiary. For benefits payable
over the life expectancy of the Participant, or the
Participant and his Beneficiary, life expectancies shall
not be recalculated annually.
21
(c) If the distribution of a Participant's Account balance
has begun (on or after his required beginning date) in
accordance with subsection (a) and the Participant dies
before his entire interest has been distributed to him,
the remaining portion of the Participant's Account
balance will be distributed at least as rapidly as under
the method of distribution being used under subsection
(b) as of the date of his death.
(d) If a Participant dies prior to the commencement of the
distribution of his Account balance (on or after his
required beginning date), the balance will be distributed
in a lump sum as soon as practicable (but in no event
more than five years) after the death of such Participant
except as permitted under subsections (e) and (f).
(e) If--
(1) any portion of the Participant's Account
balance is payable to a Beneficiary,
(2) such portion will be distributed over the life
of such Beneficiary or over a period not
extending beyond the life expectancy of the
Beneficiary, and
(3) such distribution begins not later than one
year after the date of the Participant's
death, or such later date as the Secretary of
the Treasury may by regulations prescribe,
the portion referred to in subsection (e)(1) shall be
treated as distributed within the time required under
subsection (d). For purposes of this paragraph (e),
life expectancies shall not be recalculated annually.
(f) If the designated Beneficiary referred to in subsection
(e)(l) is the surviving spouse of the Participant, the
date on which distributions are required to begin under
subsection (e)(3) shall not be earlier than the date on
which the Participant would have attained age 70-1/2.
(g) A Participant's Account balance will be distributed in
accordance with Code section 401(a)(9) and the
22
regulations issued by the Secretary of the Treasury
thereunder, including section 1.401(a)(9)-2, which are
incorporated herein by reference. In addition, the
provisions of this section 6.7 shall apply,
notwithstanding any other Plan provision to the
contrary; provided, however, that Code section 401(a)(9)
and the regulations thereunder override any Plan
provisions inconsistent with such Code section and
regulations. The exceptions to subsection (d) described
in subsections (e) and (f) shall be applied to a
Beneficiary, unless the Participant or Beneficiary
elects to have subsection (d) apply.
6.8 Withholding Taxes. The Company may withhold from a Participant's
compensation and there may be withheld from any distribution under the Plan any
taxes required to be withheld with respect to contributions or benefits under
the Plan and such sum may be reasonably necessary to cover any taxes for which
they may be liable and which may be assessed with respect to contributions or
benefits under this Plan.
6.9 Rollover Distributions.
(a) Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's
election under this section 6.9, a distributee may
elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct
rollover.
(b) For purposes of this section 6.9, an eligible rollover
distribution is any distribution of all or any portion
of the balance to the credit of the distributee, except
that an eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or
joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten (10) years or more; any distribution to
the extent such distribution is required under Code
section 401(a)(9); and the portion of any distribution
that is not includible in gross income (determined
without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
23
(c) For purposes of this section 6.9, an eligible retirement
plan is an individual retirement account described in
Code section 408(a), an individual retirement annuity
described in Code section 408(b), an annuity plan
described in Code section 403(a), or a qualified trust
described in Code section 401(a) that accepts the
distributee's eligible rollover distribution. However,
in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(d) Distributee: A distributee includes an employee or
former employee. In addition, the employee's or former
employee's surviving spouse and the employee's or former
employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as
defined in Code section 414(p), are distributees with
regard to the interest of the spouse or former spouse.
(e) Direct rollover: A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the
distributee.
(f) If a distribution is one to which Code sections
401(a)(11) and 417 do not apply, such distribution may
commence less than 30 days after the notice required
under section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(1) the Plan Administrator clearly informs the
Participant that the Participant has a right
to a period of at least 30 days after
receiving the notice to consider the decision
of whether or not to elect a distribution
(and, if applicable, a particular distribution
option), and
(2) the Participant, after receiving the notice,
affirmatively elects a distribution.
24
Article VII. Investment Elections
---------------------------------
7.1 Investment of Contributions. Each Participant may elect to invest
his Account among the available Investment Funds in increments of any whole
percent. Subject to Participant direction, the Trustee may invest up to 100% of
Plan assets in Qualifying Employer Securities.
7.2 Investment Elections. Elections shall be made and verified in a
manner prescribed by the Plan Administrator. Once filed, a Participant's
verified election will remain in effect until amended or discontinued pursuant
to this paragraph. If a Participant fails to direct the investment of all or any
portion of his Account, such amount shall be invested in the fund(s) uniformly
designated by the Plan Administrator on behalf of the Participant.
7.3 Liability for Investment Elections. If the Trustee acts at the
direction of a Participant, the Company, its board of directors, officers and
employees, the Plan Administrator and the Trustee shall not be liable or
responsible for any loss resulting to the Trust Fund or to any Account or for
any breach of fiduciary responsibility by reasons of any act done pursuant to
the direction of the Participant.
25
Article VIII. Accounts and Records of the Plan
----------------------------------------------
8.1 Accounts and Records. The Accounts and records of the Plan shall be
maintained by the Plan Administrator and shall accurately disclose the status of
the Accounts of each Participant or his Beneficiary in the Plan. Each
Participant shall be advised from time to time, at least quarterly, as to the
status of his Account.
8.2 Trust Fund. Each Participant shall have an undivided proportionate
interest in the Trust Fund which shall be measured by the proportion that the
market value of his Account bears to the total market value of all Accounts as
of the date that such interest is being determined.
8.3 Allocation of Income to Accounts. The Plan Administrator shall
value a Participant's Account as of each Valuation Date in accordance with the
income accounting applicable to each Investment Fund in which the assets of the
Account are invested and adjust the Account to reflect applicable expenses and
all other transactions since the preceding Valuation Date.
8.4 Valuation of Qualifying Employer Securities. For purposes of this
Article 8, the value of Qualifying Employer Securities held by the Plan shall be
the closing price of such Qualifying Employer Securities as reported on the New
York Stock Exchange as of the applicable Valuation Date or the last day
Qualifying Employer Securities were traded if no Qualifying Employer Securities
were traded on the Valuation Date.
26
Article IX. Financing
---------------------
9.1 Financing. The Company shall enter into the Trust Agreement in
order to implement and pay out the provisions of the Plan and to finance the
benefits under the Plan. In such event, all rights which may accrue to any
person under the Plan shall be subject to all the terms and provisions of the
Trust Agreement. The Company and the Trustee may modify the Trust Agreement in
accordance with the terms of that Agreement from time to time to accomplish the
purposes of the Plan.
9.2 Contributions. The Company shall make such contributions to the
Trust Fund as are required by the provisions of the Plan, subject to its right
to amend, modify or terminate the Plan.
9.3 Nonreversion. The Company shall not have any right, title or
interest in the contributions made to the Trust Fund, and no part of the Trust
Fund shall revert to the Company, except that:
(a) if a contribution is made to the Trust Fund by the
Company by a mistake of fact, then such contribution may
be returned to the Company within one year after the
payment of the contribution; or
(b) if any part or all of a contribution is disallowed as a
deduction under Code section 404, then to the extent
such contribution is disallowed as a deduction it may be
returned to the Company within one year after the
disallowance.
9.4 Rights in the Trust Fund. Persons eligible for benefits under the
Plan are entitled to look only to the Trust Fund for the payment of such
benefits and have no claim against the Company, the Plan Administrator or any
other person. No person has any right or interest in the Trust Fund except as
expressly provided in the Plan.
27
Article X. Administration
-------------------------
10.1 Plan Administrator and Fiduciary. The Company shall be the Plan
Administrator within the meaning of section 3(16)(A) of the Act, a fiduciary
with respect to the Plan within the meaning of sections 3(21)(A)(i) and (iii) of
the Act, and the named fiduciary under section 402 of the Act. The Company may
appoint a separate Plan Administrator. Any person, including an employee of the
Company, shall be eligible to serve as Plan Administrator. Two or more persons
may form a committee to serve as Plan Administrator. Persons serving as Plan
Administrator may resign by written notice to the Company, and the Company may
appoint or remove such persons. A Plan Administrator consisting of more than one
person shall act by a majority of its members at the time in office, either by
vote at a meeting or in writing without a meeting. A Plan Administrator
consisting of more than one person may authorize any one or more of its members
to execute any document or documents on behalf of the Plan Administrator, in
which event the Plan Administrator shall notify the Trustee of the member or
members so designated. The Trustee shall accept and rely upon any document
executed by such member or members as representing action by the Plan
Administrator until the Plan Administrator shall file with the Trustee a written
revocation of such designation. No person serving as Plan Administrator shall
vote or decide upon any matter relating solely to himself or solely to any of
his rights or benefits pursuant to the Plan.
10.2 Expenses. All expenses incurred in the administration of the Plan
shall be paid from the Trust Fund to the extent not paid by the Company. Such
expenses shall include any expenses incident to the administration of the Plan,
including, but not limited to, fees of accountants, counsel and other
specialists.
10.3 Administration. The Company shall be responsible for the
administration of the Plan. The Company shall have all such powers as may be
necessary to carry out the provisions hereof and may, from time to time,
establish rules for the administration of the Plan and the transaction of the
Plan's business. In making any such determination or rule, the Company shall
pursue uniform policies as from time to time established by the Company and
shall not discriminate in favor of or against any Participant. The Company shall
have the exclusive right to make any finding of fact necessary or appropriate
for any purpose under the Plan including, but not limited to, the determination
of the eligibility for and the amount of any benefit payable under the Plan. The
Company shall have the exclusive right to interpret the terms and provisions of
the Plan and to determine any and all questions arising under the Plan or in
connection with the administration thereof, including, without limitation, the
right to remedy or resolve possible ambiguities, inconsistencies or omissions,
by general rule or
28
particular decision. The Company shall make, or cause to be made, all reports or
other filings necessary to meet the reporting and disclosure requirements of the
Act which are the responsibility of "plan administrators" under the Act. To the
extent permitted by law, all findings of fact, determinations, interpretations
and decisions of the Company shall be conclusive and binding upon all parties
unless arbitrary and capricious.
10.4 No Enlargement of Employee Rights. Nothing contained in the Plan
shall be deemed to give any employee the right to be retained in the service of
the Company or to interfere with the right of the Company to discharge,
discipline or retire any employee at any time.
10.5 Appeals from Denial of Claims. If any claim for benefits under the
Plan is wholly or partially denied, the claimant shall be given notice in
writing of such denial, within a reasonable period of time after receipt of the
claim by the Plan (not to exceed 90 days after receipt of the claim or, if
special circumstances require an extension of time, written notice of the
extension shall be furnished to the claimant and an additional 90 days will be
considered reasonable) by registered or certified mail, which notice shall be
written in a manner calculated to be understood by the claimant, setting forth
the following information:
(a) the specific reasons for such denial;
(b) specific reference to pertinent Plan provisions on which
the denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary; and
(d) an explanation of the Plan's claim review procedure.
The claimant also shall be advised that he or his duly authorized representative
may request a review by the Plan Administrator of the decision denying the claim
by filing with the Plan Administrator, within 60 days after such notice has been
received by the claimant, a written request for such review, and that he may
review pertinent documents, and submit issues and comments in writing within the
same 60-day period. If such request is so filed, such review shall be made by
the Plan Administrator within 60 days after receipt of such request, unless
special circumstances require an extension of time for processing, in which case
the claimant shall be so notified and a decision shall be rendered as soon as
possible,
29
but not later than 120 days after receipt of the request for review. The
claimant shall be given written notice of the decision resulting from such
review, which notice shall include specific reasons for the decision, written in
a manner calculated to be understood by the claimant, and specific references to
the pertinent Plan provisions on which the decision is based.
10.6 Notice of Address and Missing Persons. Each person entitled to
benefits under the Plan must file with the Plan Administrator, in writing, his
post office address and each change of post office address. Any communication,
statement or notice addressed to such a person at his latest reported post
office address will be binding upon him for all purposes of the Plan, and
neither the Company nor the Trustee shall be obliged to search for or ascertain
his whereabouts. In the event that such person cannot be located, the Plan
Administrator may direct that such benefit and all further benefits with respect
to such person shall be discontinued, all liability for the payment thereof
shall terminate and the balance of such Participant's Account shall be deemed a
forfeiture; provided, however, that in the event of the subsequent reappearance
of the Participant or Beneficiary prior to termination of the Plan, the benefits
which were due and payable and which such person missed shall be paid in a
single sum, and any future benefits due such person shall be reinstated in full.
10.7 Data and Information for Benefits. All persons claiming benefits
under the Plan must furnish to the Plan Administrator or its designated agent
such documents, evidence or information as the Plan Administrator or its
designated agent consider necessary or desirable for the purpose of
administering the Plan, and such person must furnish such information promptly
and sign such documents as the Plan Administrator or its designated agent may
require before any benefits become payable under the Plan.
10.8 Indemnity for Liability. The Company shall indemnify any
individual who is directed by the Company to carry out responsibilities and
duties imposed by the Plan against any and all claims, losses, damages and
expenses, including counsel fees, approved by the Company, and any liability,
including any amounts paid in settlement with the Company's approval, arising
from the individual's action or failure to act, in connection with such person's
responsibilities and duties under the Plant except when the same is judicially
determined to be attributable to the gross negligence or willful misconduct of
such person. Indemnification shall not be deemed the exclusive remedy of any
person entitled to indemnification pursuant to this section. The indemnification
provided hereunder shall continue as to a person who has ceased acting as a
director, officer, agent or employee of the Plan Administrator or Company, and
such person's rights shall inure to the benefit of his heirs and
representatives.
30
10.9 Effect of a Mistake. In the event of a mistake or misstatement as
to the eligibility, participation or service of any Participant, or the amount
of payments made or to be made to a Participant or Beneficiary, the Plan
Administrator shall, if possible, cause to be withheld or accelerated or
otherwise make adjustment for such amounts of payments as will in its sole
judgment result in the Participant or Beneficiary receiving the proper amount of
payments under the Plan.
31
Article XI. Amendment and Termination
-------------------------------------
11.1 Amendment and Termination.
--------------------------
(a) The Company does hereby expressly and specifically
reserve the sole and exclusive right at any time by
action of the Board to amend, modify or terminate the
Plan.
(b) While the Company contemplates carrying out the
provisions of the Plan indefinitely with respect to the
employees, the Company shall not be under any obligation
or liability whatsoever to maintain the Plan for any
minimum or other period of time.
(c) Upon the termination of the Plan, the Company shall give
written notice thereof to the Plan Administrator and the
Trustee.
(d) Except as provided by law, upon any termination of the
Plan, the Company shall not thereafter be under any
obligation, liability or responsibility whatsoever to
make any contribution or payment to the Trust Fund, the
Plan, any Participant, any Beneficiary, or any other
person, trust or fund whatsoever, for any purpose
whatsoever under or in connection with the Plan.
11.2 Limitations on Amendments. The provisions of this Article
are subject to and limited by the following restrictions:
-----------------------------------------------------------
(a) No amendment shall operate either directly or indirectly
to give the Company any interest whatsoever in any funds
or property held by the Trustee under the terms hereof,
or to permit the corpus or income of the Trust to be
used for or diverted to purposes other than the
exclusive benefit of Participants or their Beneficiaries
or to pay expenses incurred by the Plan Administrator in
the proper administration of the Plan.
(b) No such amendment shall operate either directly or
indirectly to deprive any Participant of his vested and
nonforfeitable interest as of the time of such amendment
or eliminate an optional form of distribution for a
previously accrued benefit.
32
Article XII. Top-Heavy Provisions
---------------------------------
12.1 Application of Top-Heavy Provisions.
------------------------------------
(a) Single Plan Determination. Except as provided in
subsection (b)(2), if as of a Determination Date, the
sum of the amount of the Section 416 Accounts of Key
Employees and the Beneficiaries of deceased Key
Employees exceeds 60% of the amount of the Section 416
Accounts of all Employees and Beneficiaries (excluding
former Key Employees), the Plan is top-heavy and the
provisions of this Article shall become applicable.
(b) Aggregation Group Determination.
(1) If as of a Determination Date the Plan is part
of an Aggregation Group which is top-heavy,
the provisions of this Article shall become
applicable. Top-heaviness for the purpose of
this subsection shall be determined with
respect to the Aggregation Group in the same
manner as described in subsection (a) above.
(2) If this Plan is top-heavy under subsection
(a), but the Aggregation Group is not
top-heavy, the Plan shall not be top-heavy and
this Article shall not be applicable.
(c) Plan Administrator. The Plan Administrator shall have
responsibility to make all calculations to determine
whether this Plan is top-heavy.
12.2 Definitions.
------------
(a) "Aggregation Group" means this Plan and all other plans
maintained by the Company and the Affiliates which cover
a Key Employee and any other plan which enables a plan
covering a Key Employee to meet the requirements of Code
section 401(a)(4) or section 410. In addition, at the
election of the Plan Administrator, the Aggregation
Group may be expanded to include any other qualified
plan maintained by an Affiliate if such expanded
Aggregation Group meets the requirements of Code
sections 401(a)(4) and 410.
33
(b) "Determination Date" means the last day of the Plan Year
immediately preceding the Plan Year for which
top-heaviness is to be determined or, in the case of the
first Plan Year of a new plan, the last day of such Plan
Year.
(c) "Key Employee" means a Participant who for the Plan Year
containing the Determination Date or any of the four
preceding Plan Years is
(1) an officer of the Company or an Affiliate who
has annual Wages greater than 150% of the
amount in effect under Code section
415(c)(1)(A) for such Plan Year; provided,
however, that no more than the lesser of--
(A) 50 employees, or
(B) the greater of (i) 3 employees or (ii)
10% of all employees,
shall be treated as officers, and such
officers shall be those with the highest
annual Wages in the 5-year period;
(2) one of the ten employees having annual Wages
from the Company and all Affiliates for such
Plan Year greater than the dollar limit
specified in Code section 415(c)(1)(A) and
owning both more than a one-half of one
percent interest and the largest interests in
the Company or an Affiliate;
(3) a 5% owner of the Company or an Affiliate; or
(4) a 1% owner of the Company or an Affiliate
having annual Wages of more than $150,000.
Ownership shall be determined in accordance
with Code section 416(i)(1)(B) and (C). For
purposes of paragraph (2), if two employees
have the same ownership interest in the
Company or an Affiliate, the employee having
the greater annual Wages from the Company and
all Affiliates shall be treated as having a
larger interest.
34
(d) "Section 416 Account" means--
(1) the amount credited as of a Determination Date
to a Participant's or Beneficiary's account,
under the Plan and under any other qualified
defined contribution plan which is part of an
Aggregation Group (including amounts to be
credited as of the Determination Date but
which have not yet been contributed);
(2) the present value of the accrued benefit
credited to a Participant or Beneficiary under
a qualified defined benefit plan which is part
of an Aggregation Group; and
(3) the amount of distributions to the Participant
or Beneficiary during the five-year period
ending on the Determination Date other than a
distribution which is a tax-free rollover
contribution (or similar transfer) that is not
initiated by the Participant or that is
contributed to a plan which is maintained by
the Company or an Affiliate;
reduced by
(4) the amount of rollover contributions (or
similar transfers) and earnings thereon
credited as of a Determination Date under the
Plan or a plan forming part of an Aggregation
Group which is attributable to a rollover
contribution (or similar transfer) accepted
after December 31, 1983, initiated by the
Participant and derived from a plan not
maintained by the Company or an Affiliate.
The Account of a Participant who was a Key Employee
and who subsequently meets none of the conditions
of subsection (c) for the Plan Year containing the
Determination Date is not a Section 416 Account and
shall be excluded from all computations under this
Article. Furthermore, if a Participant has not
performed services for the Company or an Affiliate
during the five-year period ending on the
Determination Date, any account of such Participant
(and any accrued benefit for such Participant)
shall not be taken into account in computing
top-heaviness under this Article.
35
(e) "Wages" means the Participant's wages, salaries and
other amounts received for personal services rendered in
the course of employment with the Company and any
Affiliates, including those items described in Treasury
Regulation section 1.415-2(d)(1).
12.3 Minimum Contribution.
---------------------
(a) General. If this Plan is determined to be top-heavy
under the provisions of section 12.1 with respect to a
Plan Year, the sum of Company contributions (including
contributions under a salary reduction agreement) and
forfeitures under all qualified defined contribution
plans allocated to the accounts of each Participant in
the Aggregation Group who is not a Key Employee and is
an Employee on the last day of the Plan Year shall not
be less than 3% of such Participant's Wages. This
section 12.3 shall not be applicable with respect to a
Participant who is also covered under a defined benefit
plan maintained by the Company or an Affiliate which
provides the benefit specified by Code section
416(c)(1).
(b) Exception. The contribution rate specified in subsection
(a) shall not exceed the percentage at which Company
contributions and forfeitures are allocated under the
plans of the Aggregation Group to the account of the Key
Employee for whom such percentage is the highest for the
Plan Year. For the purpose of this subsection (b), the
percentage for each Key Employee shall be determined by
dividing the Company contributions and forfeitures for
the Key Employee by the amount of his total Wages for
the year not in excess of the amount permitted pursuant
to Code section 401(a)(17), as adjusted for
cost-of-living increases at such time and in such manner
as may be determined by the Secretary of the Treasury.
36
12.4 Limit on Annual Additions: Combined Plan Limit.
------------------------------------------------
(a) General. The provisions of this section 12.4 shall apply
only to Plan Years beginning prior to January 1, 2000.
If this Plan is determined to be top-heavy under section
12.1, section 4.5(b) of the Plan shall be applied by
substituting 1.0 for 1.25 in applying the provisions of
Code section 415(e)(2) and (e)(3).
(b) Exception. Subsection (a) shall not be applicable if--
(1) section 12.3 is applied by substituting "4%"
for "3%," and
(2) this Plan would not be top-heavy if "90" is
substituted for "60%" in section 12.1.
(c) Transitional Rule. If, but for this subsection (c),
subsection (a) would begin to apply with respect to the
Plan, the application of subsection (a) shall be
suspended with respect to a Participant so long as there
are--
(1) no Company contributions, forfeitures or
voluntary nondeductible contributions
allocated to such Participant, and
(2) no accruals under a qualified defined benefit
plan for such Participant.
12.5 Collective Bargaining Agreements. The requirements of section 12.3
shall not apply with respect to any employee included in a unit of employees
covered by a collective bargaining agreement between employee representatives
and the Company or an Affiliate if retirement benefits were the subject of good
faith bargaining between such employee representatives and the Company or the
Affiliate, as the case may be.
37
Article XIII. Miscellaneous
---------------------------
13.1 Beneficiary Designation.
------------------------
(a) Each unmarried Participant may designate, on a form
provided for that purpose by the Plan Administrator, a
Beneficiary or Beneficiaries to receive his interest in
the Plan in the event of his death, but such designation
shall not be effective for any purpose until it has been
filed by him during his lifetime with the Plan
Administrator. He may, from time to time during his
lifetime, on a form approved by and filed with the Plan
Administrator, change his Beneficiary or Beneficiaries.
(b) The Beneficiary of each Participant who is married shall
be the surviving spouse of such Participant, unless such
spouse consents in writing to the designation of another
Beneficiary or Beneficiaries. Each married Participant
may, from time to time, change his designation of
Beneficiaries; provided, however, that the Participant
may not change his Beneficiary without the written
consent of his spouse.
(c) In the event that a Participant fails to designate a
Beneficiary, or if for any reason such designation shall
be legally ineffective, or if all designated
Beneficiaries predecease him or die simultaneously with
him, distribution shall be made to his estate. If any
such Beneficiary shall die prior to receiving the
distribution that would have been made to such
Beneficiary had such Beneficiary's death not occurred,
then, for the purposes of the Plan, the distribution
that would have been received by such Beneficiary shall
be made to such Beneficiary's estate.
(d) The written consent described in subsection (b) shall
acknowledge the effect of such election and shall be
witnessed by a Plan representative designated by the
Plan Administrator or a notary public.
13.2 Incompetency. Every person receiving or claiming benefits under
the Plan shall be conclusively presumed to be mentally competent and of age
until the Plan Administrator receives written notice, in a form and manner
acceptable to it, that such person is incompetent or a minor, and that a
guardian, conservator or
38
other person legally vested with the care of his estate has been appointed. In
the event that the Plan Administrator finds that any person to whom a benefit is
payable under the Plan is unable to properly care for his affairs, or is a
minor, then any payment due (unless a prior claim therefor shall have been made
by a duly appointed legal representative) may be paid to the spouse, a child, a
parent, a brother or a sister, or to any person deemed by the Plan Administrator
to have incurred expense for such person otherwise entitled to payment. In the
event a guardian or conservator of the estate of any person receiving or
claiming benefits under the Plan shall be appointed by a court of competent
jurisdiction, payments shall be made to such guardian or conservator, provided
that proper proof of appointment is furnished in a form and manner suitable to
the Plan Administrator. To the extent permitted by law, any payment made under
the provisions of this section 13.2 shall be a complete discharge of liability
under the Plan.
13.3 Nonalienation. Except as provided in Code section 401(a)(13),
neither benefits payable at any time under the Plan nor the corpus or income of
the Trust Fund shall be subject in any manner to alienation, sale, transfer,
assignment, pledge, attachment, garnishment or encumbrance of any kind. Any
attempt to alienate, sell, transfer, assign, pledge or otherwise encumber any
such benefit, whether presently or thereafter payable, shall be void. No benefit
nor the Trust Fund shall in any manner be liable for or subject to the debts or
liabilities of any Participant or of any other person entitled to any benefit.
The Plan Administrator shall recognize a qualified domestic relations order with
respect to child support, alimony payments, or marital property rights, if the
Plan Administrator determines that it meets the applicable requirements of Code
section 414(p); if any such order so directs, a distribution of benefits may be
to the alternative payee at a time not permitted for distributions to the
Participant. The Plan Administrator shall establish procedures to determine
whether domestic relations orders are "qualified domestic relations orders" and
to administer distributions under such qualified domestic relations orders.
13.4 Applicable Law. The Plan and all rights hereunder shall be
governed by and construed in accordance with the laws of the State of Wisconsin
to the extent such laws have not been preempted by applicable federal law.
13.5 Severability. If a provision of the Plan shall be held illegal or
invalid, the illegality or invalidity shall not affect the remaining parts of
the Plan and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included in the Plan.
13.6 No Guarantee. Neither the Plan Administrator, the Company nor the
Trustee in any way guarantees the Trust Fund from loss or depreciation nor the
39
payment of any money which may be or become due to any person from the Trust
Fund. Nothing herein contained shall be deemed to give any Participant or
Beneficiary an interest in any specific part of the Trust Fund or any other
interest except the right to receive benefits out of the Trust Fund in
accordance with the provisions of the Plan and the Trust.
13.7 Merger, Consolidation or Transfer. In the case of any merger or
consolidation of the Plan with, or in the case of any transfer of assets or
liabilities of the Plan to or from, any other plan, each Participant shall
receive a benefit immediately after the merger, consolidation or transfer (if
the Plan had then terminated) which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger, consolidation
or transfer (if the Plan had then terminated).
IN WITNESS WHEREOF, RAYOVAC CORPORATION has caused this instrument to
be executed by its duly authorized officer as of the 23rd day of October
1997.
RAYOVAC CORPORATION
By Russell E. Lefevre
------------------------
Vice President--Human Resources
Its -----------------------
APPENDIX A
PARTICIPATING GROUPS OF EMPLOYEES GROUP EFFECTIVE DATE*
Salaried Employees 07/01/83
Appleton Plant: Non-union hourly paid employees. 07/01/83
Sauk City Plant: Non-union hourly paid employees 08/26/88
Portage, WI: Non-union hourly paid employees. 08/01/97
Wonewoc, WI: Non-union hourly paid employees. 08/01/97
Consent of KPMG Peat Marwick LLP
The Board of Directors
Rayovac Corporation:
We consent to the use of our reports included herein and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Milwaukee, Wisconsin
October 30, 1997
Consent of Independent Accountants
We consent to the inclusion in Amendment No. 1 to this registration statement on
Form S-1, (File No. 333-35181) of our report dated November 22, 1996, on our
audits of the consolidated financial statements of Rayovac Corporation as of
September 30, 1996 and June 30, 1996, and for the period July 1, 1996 to
September 30, 1996 and each of the two years in the period ended June 30, 1996.
We also consent to the references to our firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Milwaukee, Wisconsin
October 30, 1997
5
12-MOS
Sep-30-1997
Sep-30-1997
1,133
0
80,890
1,221
58,551
154,380
142,972
77,461
236,881
120,563
207,321
0
0
500
80,095
236,881
432,552
432,552
0
234,569
163,219
617
24,542
9,605
3,419
6,186
0
0
0
6,186
0.28
0.28
