Exhibit Number Description
- ---------------- ---------------------------------------
21 Subsidiaries of the Company.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
27 Financial Data Schedule.
- ----------------
* Incorporated by reference to the Company's Registration Statement on Form
S-1 (Registration No. 333-35181) filed with the Commission.
** Incorporated by reference to the Company's Registration Statement on Form
S-1 (Registration No. 333-17895) filed with the Commission.
*** Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 29, 1997 filed with the Commission on
August 13, 1997.
**** Incorporated by reference to the Company's Registration Statement on Form
S-3 (Registration No. 333-49281) filed with the Commission.
+ Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1997 filed with the Commission on
December 23, 1997.
++ Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended June 27, 1998 filed with the Commission on
August 4, 1998.
+++ Incorporated by reference to the Company's Current Report on Form 8-K/A
filed with the Commission on June 20, 1997.
++++ Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarterly period ended March 28, 1998 filed with the Commission on
May 5, 1998.
82
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment is entered into, effective 1 October 1998, by and between Kent J.
Hussey (the "Executive") and Rayovac Corporation, a Wisconsin corporation (the
"Company").
Background
The Company desires to protect its confidential information and trade secrets
and to protect itself against competition from its key executives.
The Company and the Executive wish to amend the existing employment agreement
between themselves dated as of 27 April 1998 (the "Agreement").
Undertakings
Now therefore, the parties agree:
1. Section 5(b)(i) of the Agreement is hereby amended and restated in its
entirety to read as follows:
The Executive's Base Salary specified in Section 3(a) shall continue
to be paid in monthly installments until the first to occur of (i)
twenty-four (24) months following such termination or (ii) such time
as the Executive or the Executive's Estate breaches the provisions
of Sections 6 or 7 of this Agreement.
2. Section 5(b)(iii) of the Agreement is hereby amended and restated in its
entirety to read as follows:
-2-
If the Executive's employment is terminated as a result of
disability, the Executive's additional benefits specified in Section
3(c) shall continue to be available to the Executive until the first
to occur of (i) the remaining period of the Term (or twenty-four
(24) months following such termination, if greater) or (ii) such
time as the Executive breaches the provisions of Sections 6 or 7 of
this Agreement; and
3. Section 5(c)(i) of the Agreement is hereby amended and restated in its
entirety to read as follows:
the Executive's Base Salary specified in Section 3(a) shall continue
to be paid in monthly installments until the first to occur of (i)
the remaining period of the Term (or twenty-four (24) months
following such termination, if greater) or (ii) such time as the
Executive breaches the provisions of Sections 6 or 7 of this
Agreement;
4. Section 5(c)(iii) of the Agreement is hereby amended and restated in its
entirety to read as follows:
the Executive's additional benefits specified in Section 3(c) shall
continue to be available to the Executive until the first to occur
of (i) twenty-four (24) months following such termination or (ii)
such time as the Executive breaches the provisions of Sections 6 or
7 of this Agreement;
5. The last sentence of Section 6(a) of the Agreement is hereby amended and
restated in its entirety to read as follows:
-3-
The "Non-Competition Period" is (a) the longer of the Executive's
employment hereunder or time period which he serves as a director of
the Company plus (b) a period of two (2) years thereafter.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
RAYOVAC CORPORATION EXECUTIVE
By: /s/ David A. Jones /s/ Kent J. Hussey
---------------------------- --------------------------------
David A. Jones Kent J. Hussey
Chairman
SEVERANCE AGREEMENT
This Agreement, dated as of 1 October 1998, is made by and between Rayovac
Corporation (the "Company"), a Wisconsin corporation with its principal business
address at 601 Rayovac Drive, Madison, Wisconsin 53711, and Randall J. Steward,
an individual residing at 3024 Woodland Trail, Middleton, WI 53562 (the
"Executive").
BACKGROUND
The Executive has been, and continues to be, privy to important confidential
information of the Company, and has developed substantial skills and knowledge
related to the Company's industry, which skills and knowledge would be of
substantial value to the Company's competition.
The Company considers it essential to the best interests of its shareholders to
foster the continued employment of key managers, and to limit their ability to
compete with the Company after their employment terminates.
The Executive and the Company wish to execute this Agreement to formalize
additional terms of the Executive's employment.
UNDERTAKINGS
Now therefore, the parties agree:
1. Term of Agreement. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue in effect through 30 September 1999;
provided, however, that commencing on 1 October 1998
and each year thereafter, the Term shall automatically extend one
additional year unless, not later than 30 days prior to the end of the
preceding Term, the Company or the Executive shall give notice not to
extend the Term.
2. Severance Payments.
2.1 If the Executive's employment is terminated during the Term (a) by the
Company without Cause (as defined below) or (b) by reason of death or
Disability (as defined below), then the Company shall pay the
Executive the amounts, and provide the Executive the benefits,
described in Section 2.2 (the "Severance Payments").
2.2 (a) The Company shall pay to the Executive as severance, an amount in
cash equal to two (2) times the sum of (i) the Executive's base salary
as in effect for the fiscal year ending immediately prior to the
fiscal year in which such termination occurs, and (ii) the annual
bonus (if any) earned by the Executive pursuant to any annual bonus or
incentive plan maintained by the Company in respect of the fiscal year
ending immediately prior to the fiscal year in which the termination
occurs, such cash amount to be paid to the Executive ratably monthly
in arrears over the Non-Competition Period (as defined below).
(b) For the 12-month period immediately following such termination,
the Company shall arrange to provide the Executive and his dependents
insurance benefits substantially similar to those provided to the
Executive and his dependents immediately prior to the date of
termination, at no greater cost to the Executive than the cost to the
Executive
immediately prior to such date. Benefits otherwise receivable by the
Executive pursuant to this Section 2.2(b) shall cease immediately upon
the discovery by the Company of the Executive's breach of the
covenants contained in Sections 5 or 6 hereof. In addition, benefits
otherwise receivable by the Executive pursuant to this Section 2.2(b)
shall be reduced to the extent benefits of the same type are received
by or made available to the Executive during the 12-month period
following the Executive's termination of employment (and any such
benefits received by or made available to the Executive shall be
reported to the Company by the Executive); provided, however, that the
Company shall reimburse the Executive for the excess, if any, of the
cost of such benefits to the Executive over such cost immediately
prior to the date of termination.
2.3 Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state, or local law and
any additional withholding to which the Executive has agreed.
2.4 If the Executive's employment with the Company terminates during the
Term, the Executive shall not be required to seek other employment or
to attempt in any way to reduce any amounts payable to the Executive
by the Company pursuant to this Section 2.
3. Termination Procedures. During the Term, any purported termination of the
Executive's employment (other than by reason of death) shall be
communicated by written notice of termination from one party to the other
in accordance with Section 8 hereof. The notice of termination shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated.
4. No Rights to Employment. This Agreement shall not be construed as creating
an express or implied contract of employment, and except as otherwise
agreed in writing between the Executive and the Company and authorized by
the Board of Directors of the Company, the Executive shall not have any
right to be retained in the employ of the Company.
5. Executive's Covenant Not to Compete.
5.1 During the Non-Competition Period, the Executive will not, directly or
indirectly, in any capacity, either separately, jointly, or in
association with others, as an officer, director, consultant, agent,
employee, owner, principal, partner, or stockholder of any business,
or in any other capacity, engage or have a financial interest in any
business which is involved in the design, manufacturing, marketing, or
sale of batteries or battery operated lighting devices (excepting only
the ownership of not more than 5% of the outstanding securities of an
class listed on an exchange or the Nasdaq Stock Market). For purposes
of this Agreement, the "Non-Competition Period" means the period
beginning on the date hereof and continuing until the date which is
the two-year anniversary of the later to occur of (a) the end of the
Term and (b) the date of termination.
5.2 Without limiting the generality of Section 5.1 above, during the
Non-Competition Period the Executive will not, directly or indirectly,
in any capacity, either separately, jointly, or in association with
others, solicit or otherwise contact any of the Company's customers or
prospects that were customers or prospects
of the Company at any time during the Non-Competition Period if such
solicitation or contact is for the general purpose of selling products
that satisfy the same general needs as any products that the Company
had available for sale to its customers or prospects during the
Non-Competition Period.
5.3 During the Non-Competition Period, the Executive shall not, other than
in connection with employment for the Company, solicit the employment
or services of any employee of the Company who is or was an employee
of the Company at any time during the Non-Competition Period. During
the Non-Competition Period, the Executive shall not hire any employee
of Company for any other business.
5.4 If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to
time or space, the court is hereby requested and authorized by the
parties to revise the foregoing restrictions to include the maximum
restrictions allowed under the applicable law.
5.5 For purposes of this Section 5 and Section 6, the "Company" refers to
the Company and any incorporated or unincorporated affiliates of the
Company.
6. Secret Processes and Confidential Information.
6.1 The Executive will hold in strict confidence and, except as the
Company may authorize or direct, not disclose to any person or use
(except in the performance of his services hereunder) any confidential
information or materials received by the Executive from
the Company or any confidential information or materials of other
parties received by the Executive in connection with the performance
of his duties hereunder. For purposes of this Section 6.1,
confidential information or materials shall include existing and
potential customer information, existing and potential supplier
information, product information, design and construction information,
pricing and profitability information, financial information, sales
and marketing strategies and techniques, and business ideas or
practices. The restriction on the Executive's use or disclosure of the
confidential information or materials shall remain in force until such
information is of general knowledge in the industry through no fault
of the Executive or any agent of the Executive. The Executive also
will return to the Company promptly upon its request any Company
information or materials in the Executive's possession or under the
Executive's control.
6.2 The Executive will promptly disclose to the Company and to no other
person, firm or entity all inventions, discoveries, improvements,
trade secrets, formulas, techniques, processes, know-how and similar
matters, whether or not patentable and whether or not reduced to
practice, which are conceived or learned by the Executive during the
period of the Executive's employment with the Company, either alone or
with others, which relate to or result from the actual or anticipated
business or research of the Company or which result, to any extent,
from the Executive's use of the Company's premises or property
(collectively called the "Inventions"). The Executive acknowledges and
agrees that all Inventions shall be the sole property of the Company,
and the Executive hereby assigns to the Company all of the Executive's
rights and interests in and to all of the Inventions, it being
acknowledged and agreed by the Executive that all the
Inventions are works made for hire. The Company shall be the sole
owner of all domestic and foreign rights and interests in the
Inventions. The Executive will assist the Company at the Company's
expense to obtain and from time to time enforce patents and copyrights
on the Inventions.
6.3 Upon the request of, and, in any event, upon termination of the
Executive's employment with the Company, the Executive shall promptly
deliver to the Company all documents, data, records, notes, drawings,
manuals, and all other tangible information in whatever form which
pertains to the Company, and the Executive will not retain any such
information or any reproduction or excerpt thereof.
7. Successors; Binding Agreement
7.1 In addition to any obligations imposed by law upon any successor to
the Company, the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to the Severance Payments,
except that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the date
of termination. For purposes of this Agreement, "Company" shall mean
Rayovac Corporation, a Wisconsin corporation, and shall include any
successor to its business or assets
which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
7.2 This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount would still be
payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the
Executive's estate.
8. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given (a) when delivered personally, (b) upon
confirmation of receipt when such notice or other communication is sent by
facsimile or telex, (c) one day after delivery to an overnight delivery
courier, or (d) on the fifth day following the date of deposit in the
United States mail if sent first class, postage prepaid, by registered or
certified mail.
9. Survival. The obligations of the Company and the Executive under this
Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without
limitation, those under Sections 2, 5 and 6 hereof) shall survive such
expiration.
10. Amendment; Waiver. This Agreement may be amended, modified, superseded, or
canceled, and the terms hereof may be waived, only by a
written instrument executed by all of the parties hereto or, in the case of
a waiver, by the party waiving compliance. The failure of any party at any
time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by
any party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of
any such breach, or a waiver of the breach of any other term or covenant
contained in this Agreement.
11. Equitable Relief. Breach of any provision of Sections 5 or 6 of this
Agreement would result in irreparable injuries to the Company, the remedy
at law for any such breach will be inadequate, and upon breach of such
provisions, the Company, in addition to all other available remedies, shall
be entitled as a matter of right to injunctive relief in any court of
competent jurisdiction without the necessity of proving the actual damage
to the Company.
12. Entire Agreement. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes
all prior negotiations, discussions, writings, and agreements between them.
13. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together will
constitute one and the same instrument.
15. Definitions. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(a) "Cause" for termination by the Company of the Executive's employment
shall mean (i) the commission by the Executive of any fraud,
embezzlement or other material act of dishonesty with respect to the
Company or any of its affiliates (including the unauthorized
disclosure of confidential or proprietary information of the Company
or any of its affiliates or subsidiaries); (ii) Executive's conviction
of, or plea of guilty or nolo contendere to, a felony or other crime
involving moral turpitude; (iii) Executive's willful misconduct; (iv)
willful failure or refusal by Executive to perform his duties and
responsibilities to the Company or any of its affiliates which failure
or refusal to perform is not remedied within 30 days after receipt of
a written notice from the Company detailing such failure or refusal to
perform; or (v) Executive's breach of any of the terms of this
Agreement or any other agreement between Executive and the Company
which breach is not cured within 30 days subsequent to notice from the
Company to Executive of such breach.
(b) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the
Executive's inability to perform his duties by reason of any mental,
physical or other disability for a period of at least 6 consecutive
months (for purposes hereof, "disability" has the same meaning as in
the Company's disability policy), the Company shall have given the
Executive a notice of termination for Disability, and, within 30 days
after such notice of termination is given, the Executive shall not
have returned to the full-time performance of the Executive's duties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
RAYOVAC CORPORATION EXECUTIVE
By: /s/ Kent J. Hussey /s/ Randall J. Steward
------------------ ----------------------
Kent J. Hussey Randall J. Steward
President
SEVERANCE AGREEMENT
This Agreement, dated as of 1 October 1998, is made by and between Rayovac
Corporation (the "Company"), a Wisconsin corporation with its principal business
address at 601 Rayovac Drive, Madison, Wisconsin 53711, and Roger F. Warren, an
individual residing at 505 Summit Road, Madison, WI 53704 (the "Executive").
BACKGROUND
The Executive has been, and continues to be, privy to important confidential
information of the Company, and has developed substantial skills and knowledge
related to the Company's industry, which skills and knowledge would be of
substantial value to the Company's competition.
The Company considers it essential to the best interests of its shareholders to
foster the continued employment of key managers, and to limit their ability to
compete with the Company after their employment terminates.
The Executive and the Company wish to execute this Agreement to formalize
additional terms of the Executive's employment.
UNDERTAKINGS
Now therefore, the parties agree:
1. Term of Agreement. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue in effect through 30 September 1999;
provided, however, that commencing on 1 October 1998 and each year
thereafter, the Term shall automatically extend one additional year unless,
not later than 30 days prior to the end of the preceding Term, the Company
or the Executive shall give notice not to extend the Term.
2. Severance Payments.
2.1 If the Executive's employment is terminated during the Term (a) by the
Company without Cause (as defined below) or (b) by reason of death or
Disability (as defined below), then the Company shall pay the
Executive the amounts, and provide the Executive the benefits,
described in Section 2.2 (the "Severance Payments").
2.2 (a) The Company shall pay to the Executive as severance, an amount in
cash equal to two (2) times the sum of (i) the Executive's base salary
as in effect for the fiscal year ending immediately prior to the
fiscal year in which such termination occurs, and (ii) the annual
bonus (if any) earned by the Executive pursuant to any annual bonus or
incentive plan maintained by the Company in respect of the fiscal year
ending immediately prior to the fiscal year in which the termination
occurs, such cash amount to be paid to the Executive ratably monthly
in arrears over the Non-Competition Period (as defined below).
(b) For the 12-month period immediately following such termination,
the Company shall arrange to provide the Executive and his dependents
insurance benefits substantially similar to those provided to the
Executive and his dependents immediately prior to the date of
termination, at no greater cost to the Executive than the cost to the
Executive immediately prior to such date. Benefits otherwise
receivable by the Executive pursuant to this Section 2.2(b) shall
cease immediately upon the discovery by the Company of the Executive's
breach of the covenants contained in Sections 5 or 6 hereof. In
addition, benefits otherwise receivable by the Executive pursuant to
this Section 2.2(b) shall be reduced to the extent benefits of the
same type are received by or made available to the Executive during
the 12-month period following the Executive's termination of
employment (and any such benefits received by or made available to the
Executive shall be reported to the Company by the Executive);
provided, however, that the Company shall reimburse the Executive for
the excess, if any, of the cost of such benefits to the Executive over
such cost immediately prior to the date of termination.
2.3 Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state, or local law and
any additional withholding to which the Executive has agreed.
2.4 If the Executive's employment with the Company terminates during the
Term, the Executive shall not be required to seek other employment or
to attempt in any way to reduce any amounts payable to the Executive
by the Company pursuant to this Section 2.
3. Termination Procedures. During the Term, any purported termination of the
Executive's employment (other than by reason of death) shall be
communicated by written notice of termination from one party to the other
in accordance with Section 8 hereof. The notice of
termination shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
4. No Rights to Employment. This Agreement shall not be construed as creating
an express or implied contract of employment, and except as otherwise
agreed in writing between the Executive and the Company and authorized by
the Board of Directors of the Company, the Executive shall not have any
right to be retained in the employ of the Company.
5. Executive's Covenant Not to Compete.
5.1 During the Non-Competition Period, the Executive will not, directly or
indirectly, in any capacity, either separately, jointly, or in
association with others, as an officer, director, consultant, agent,
employee, owner, principal, partner, or stockholder of any business,
or in any other capacity, engage or have a financial interest in any
business which is involved in the design, manufacturing, marketing, or
sale of batteries or battery operated lighting devices (excepting only
the ownership of not more than 5% of the outstanding securities of an
class listed on an exchange or the Nasdaq Stock Market). For purposes
of this Agreement, the "Non-Competition Period" means the period
beginning on the date hereof and continuing until the date which is
the two-year anniversary of the later to occur of (a) the end of the
Term and (b) the date of termination.
5.2 Without limiting the generality of Section 5.1 above, during the
Non-Competition Period the Executive will not, directly or indirectly,
in any capacity, either separately, jointly, or in association with
others, solicit or otherwise contact any of the Company's customers or
prospects that were customers or prospects of the Company at any time
during the Non-Competition Period if such solicitation or contact is
for the general purpose of selling products that satisfy the same
general needs as any products that the Company had available for sale
to its customers or prospects during the Non-Competition Period.
5.3 During the Non-Competition Period, the Executive shall not, other than
in connection with employment for the Company, solicit the employment
or services of any employee of the Company who is or was an employee
of the Company at any time during the Non-Competition Period. During
the Non-Competition Period, the Executive shall not hire any employee
of Company for any other business.
5.4 If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to
time or space, the court is hereby requested and authorized by the
parties to revise the foregoing restrictions to include the maximum
restrictions allowed under the applicable law.
5.5 For purposes of this Section 5 and Section 6, the "Company" refers to
the Company and any incorporated or unincorporated affiliates of the
Company.
6. Secret Processes and Confidential Information.
6.1 The Executive will hold in strict confidence and, except as the
Company may authorize or direct, not disclose to any person or use
(except in the performance of his services hereunder) any confidential
information or materials received by the Executive from the Company or
any confidential information or materials of other parties received by
the Executive in connection with the performance of his duties
hereunder. For purposes of this Section 6.1, confidential information
or materials shall include existing and potential customer
information, existing and potential supplier information, product
information, design and construction information, pricing and
profitability information, financial information, sales and marketing
strategies and techniques, and business ideas or practices. The
restriction on the Executive's use or disclosure of the confidential
information or materials shall remain in force until such information
is of general knowledge in the industry through no fault of the
Executive or any agent of the Executive. The Executive also will
return to the Company promptly upon its request any Company
information or materials in the Executive's possession or under the
Executive's control.
6.2 The Executive will promptly disclose to the Company and to no other
person, firm or entity all inventions, discoveries, improvements,
trade secrets, formulas, techniques, processes, know-how and similar
matters, whether or not patentable and whether or not reduced to
practice, which are conceived or learned by the Executive during the
period of the Executive's employment with the Company, either alone or
with others, which relate to or result from the actual or anticipated
business or research of the Company or which result, to any extent,
from the Executive's use of the Company's premises or property
(collectively called the "Inventions"). The Executive acknowledges and
agrees that all Inventions shall be the sole property of the Company,
and the Executive hereby assigns to the Company all of the Executive's
rights and interests in and to all of the Inventions, it being
acknowledged and agreed by the Executive that all the Inventions are
works made for hire. The Company shall be the sole owner of all
domestic and foreign rights and interests in the Inventions.
The Executive will assist the Company at the Company's expense to
obtain and from time to time enforce patents and copyrights on the
Inventions.
6.3 Upon the request of, and, in any event, upon termination of the
Executive's employment with the Company, the Executive shall promptly
deliver to the Company all documents, data, records, notes, drawings,
manuals, and all other tangible information in whatever form which
pertains to the Company, and the Executive will not retain any such
information or any reproduction or excerpt thereof.
7. Successors; Binding Agreement
7.1 In addition to any obligations imposed by law upon any successor to
the Company, the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to the Severance Payments,
except that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the date
of termination. For purposes of this Agreement, "Company" shall mean
Rayovac Corporation, a Wisconsin corporation, and shall include any
successor to its business or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
7.2 This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount would still be
payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the
Executive's estate.
8. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given (a) when delivered personally, (b) upon
confirmation of receipt when such notice or other communication is sent by
facsimile or telex, (c) one day after delivery to an overnight delivery
courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail.
9. Survival. The obligations of the Company and the Executive under this
Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without
limitation, those under Sections 2, 5 and 6 hereof) shall survive such
expiration.
10. Amendment; Waiver. This Agreement may be amended, modified, superseded, or
canceled, and the terms hereof may be waived, only by a written instrument
executed by all of the parties hereto or, in the case of a waiver, by the
party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the
breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
11. Equitable Relief. Breach of any provision of Sections 5 or 6 of this
Agreement would result in irreparable injuries to the Company, the remedy
at law for any such breach will be inadequate, and upon breach of such
provisions, the Company, in addition to all other available remedies, shall
be entitled as a matter of right to injunctive relief in any court of
competent jurisdiction without the necessity of proving the actual damage
to the Company.
12. Entire Agreement. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes
all prior negotiations, discussions, writings, and agreements between them.
13. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together will
constitute one and the same instrument.
15. Definitions. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(a) "Cause" for termination by the Company of the Executive's employment
shall mean (i) the commission by the Executive of any fraud,
embezzlement or other material act of dishonesty with respect to the
Company or any of its affiliates (including the unauthorized
disclosure of confidential or proprietary information of the Company
or any of its affiliates or subsidiaries); (ii) Executive's conviction
of, or plea of guilty or nolo contendere to, a felony or other crime
involving moral turpitude; (iii) Executive's willful misconduct; (iv)
willful failure or refusal by Executive to perform his duties and
responsibilities to the Company or any of its affiliates which failure
or refusal to perform is not remedied within 30 days after receipt of
a written notice from the Company detailing such failure or refusal to
perform; or (v) Executive's breach of any of the terms of this
Agreement or any other agreement between Executive and the Company
which breach is not cured within 30 days subsequent to notice from the
Company to Executive of such breach.
(b) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the
Executive's inability to perform his duties by reason of any mental,
physical or other disability for a period of at least 6 consecutive
months (for purposes hereof, "disability" has the same meaning as in
the Company's disability policy), the Company shall have given the
Executive a notice of termination for Disability, and, within 30 days
after such notice of termination is given, the Executive shall not
have returned to the full-time performance of the Executive's duties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
RAYOVAC CORPORATION EXECUTIVE
By: /s/ Kent J. Hussey /s/ Roger F. Warren
------------------ -------------------
Kent J. Hussey Roger F. Warren
President
SEVERANCE AGREEMENT
This Agreement, dated as of 1 October 1998, is made by and between Rayovac
Corporation (the "Company"), a Wisconsin corporation with its principal business
address at 601 Rayovac Drive, Madison, Wisconsin 53711, and Stephen P. Shanesy,
an individual residing at 7866 Black River Road, Verona, WI 53593 (the
"Executive").
BACKGROUND
The Executive has been, and continues to be, privy to important confidential
information of the Company, and has developed substantial skills and knowledge
related to the Company's industry, which skills and knowledge would be of
substantial value to the Company's competition.
The Company considers it essential to the best interests of its shareholders to
foster the continued employment of key managers, and to limit their ability to
compete with the Company after their employment terminates.
The Executive and the Company wish to execute this Agreement to formalize
additional terms of the Executive's employment.
UNDERTAKINGS
Now therefore, the parties agree:
1. Term of Agreement. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue in effect through 30 September 1999;
provided, however, that commencing on 1 October 1998 and each year
thereafter, the Term shall automatically extend one additional year unless,
not later than 30 days prior to the end of the preceding Term, the Company
or the Executive shall give notice not to extend the Term.
2. Severance Payments.
2.1 If the Executive's employment is terminated during the Term (a) by the
Company without Cause (as defined below) or (b) by reason of death or
Disability (as defined below), then the Company shall pay the
Executive the amounts, and provide the Executive the benefits,
described in Section 2.2 (the "Severance Payments").
2.2 (a) The Company shall pay to the Executive as severance, an amount in
cash equal to two (2) times the sum of (i) the Executive's base salary
as in effect for the fiscal year ending immediately prior to the
fiscal year in which such termination occurs, and (ii) the annual
bonus (if any) earned by the Executive pursuant to any annual bonus or
incentive plan maintained by the Company in respect of the fiscal year
ending immediately prior to the fiscal year in which the termination
occurs, such cash amount to be paid to the Executive ratably monthly
in arrears over the Non-Competition Period (as defined below).
(b) For the 12-month period immediately following such termination,
the Company shall arrange to provide the Executive and his dependents
insurance benefits substantially similar to those provided to the
Executive and his dependents immediately prior to the date of
termination, at no greater cost to the Executive than the cost to the
Executive immediately prior to such date. Benefits otherwise
receivable by the Executive pursuant to this Section 2.2(b) shall
cease immediately upon the discovery by the Company of the Executive's
breach of the covenants contained in Sections 5 or 6 hereof. In
addition, benefits otherwise receivable by the Executive pursuant to
this Section 2.2(b) shall be reduced to the extent benefits of the
same type are received by or made available to the Executive during
the 12-month period following the Executive's termination of
employment (and any such benefits received by or made available to the
Executive shall be reported to the Company by the Executive);
provided, however, that the Company shall reimburse the Executive for
the excess, if any, of the cost of such benefits to the Executive over
such cost immediately prior to the date of termination.
2.3 Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state, or local law and
any additional withholding to which the Executive has agreed.
2.4 If the Executive's employment with the Company terminates during the
Term, the Executive shall not be required to seek other employment or
to attempt in any way to reduce any amounts payable to the Executive
by the Company pursuant to this Section 2.
3. Termination Procedures. During the Term, any purported termination of the
Executive's employment (other than by reason of death) shall be
communicated by written notice of termination from one party to the other
in accordance with Section 8 hereof. The notice of termination shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated.
4. No Rights to Employment. This Agreement shall not be construed as creating
an express or implied contract of employment, and except as otherwise
agreed in writing between the Executive and the Company and authorized by
the Board of Directors of the Company, the Executive shall not have any
right to be retained in the employ of the Company.
5. Executive's Covenant Not to Compete.
5.1 During the Non-Competition Period, the Executive will not, directly or
indirectly, in any capacity, either separately, jointly, or in
association with others, as an officer, director, consultant, agent,
employee, owner, principal, partner, or stockholder of any business,
or in any other capacity, engage or have a financial interest in any
business which is involved in the design, manufacturing, marketing, or
sale of batteries or battery operated lighting devices (excepting only
the ownership of not more than 5% of the outstanding securities of an
class listed on an exchange or the Nasdaq Stock Market). For purposes
of this Agreement, the "Non-Competition Period" means the period
beginning on the date hereof and continuing until the date which is
the two-year anniversary of the later to occur of (a) the end of the
Term and (b) the date of termination.
5.2 Without limiting the generality of Section 5.1 above, during the
Non-Competition Period the Executive will not, directly or indirectly,
in any capacity, either separately, jointly, or in association with
others, solicit or otherwise contact any of the Company's customers or
prospects that were customers or prospects of the Company at any time
during the Non-Competition Period if such solicitation or contact is
for the general purpose of selling products that satisfy the same
general needs as any products that the Company had available for sale
to its customers or prospects during the Non-Competition Period.
5.3 During the Non-Competition Period, the Executive shall not, other than
in connection with employment for the Company, solicit the employment
or services of any employee of the Company who is or was an employee
of the Company at any time during the Non-Competition Period. During
the Non-Competition Period, the Executive shall not hire any employee
of Company for any other business.
5.4 If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to
time or space, the court is hereby requested and authorized by the
parties to revise the foregoing restrictions to include the maximum
restrictions allowed under the applicable law.
5.5 For purposes of this Section 5 and Section 6, the "Company" refers to
the Company and any incorporated or unincorporated affiliates of the
Company.
6. Secret Processes and Confidential Information.
6.1 The Executive will hold in strict confidence and, except as the
Company may authorize or direct, not disclose to any person or use
(except in the performance of his services hereunder) any confidential
information or materials received by the Executive from the Company or
any confidential information or materials of other parties received by
the Executive in connection with the performance of his duties
hereunder. For purposes of this Section 6.1, confidential information
or materials shall include existing and potential customer
information, existing and potential supplier information, product
information, design and construction information, pricing and
profitability information, financial information, sales and marketing
strategies and techniques, and business ideas or practices. The
restriction on the Executive's use or disclosure of the confidential
information or materials shall remain in force until such information
is of general knowledge in the industry through no fault of the
Executive or any agent of the Executive. The Executive also will
return to the Company promptly upon its request any Company
information or materials in the Executive's possession or under the
Executive's control.
6.2 The Executive will promptly disclose to the Company and to no other
person, firm or entity all inventions, discoveries, improvements,
trade secrets, formulas, techniques, processes, know-how and similar
matters, whether or not patentable and whether or not reduced to
practice, which are conceived or learned by the Executive during the
period of the Executive's employment with the Company, either alone or
with others, which relate to or result from the actual or anticipated
business or research of the Company or which result, to any extent,
from the Executive's use of the Company's premises or property
(collectively called the "Inventions"). The Executive acknowledges and
agrees that all Inventions shall be the sole property of the Company,
and the Executive hereby assigns to the Company all of the Executive's
rights and interests in and to all of the Inventions, it being
acknowledged and agreed by the Executive that all the Inventions are
works made for hire. The Company shall be the sole owner of all
domestic and foreign rights and interests in the Inventions. The
Executive will assist the Company at the Company's expense to obtain
and from time to time enforce patents and copyrights on the
Inventions.
6.3 Upon the request of, and, in any event, upon termination of the
Executive's employment with the Company, the Executive shall promptly
deliver to the Company all documents, data, records, notes, drawings,
manuals, and all other tangible information in whatever form which
pertains to the Company, and the Executive will not retain any such
information or any reproduction or excerpt thereof.
7. Successors; Binding Agreement
7.1 In addition to any obligations imposed by law upon any successor to
the Company, the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to the Severance Payments,
except that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the date
of termination. For purposes of this Agreement, "Company" shall mean
Rayovac Corporation, a Wisconsin corporation, and shall include any
successor to its business or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
7.2 This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount would still be
payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the
Executive's estate.
8. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given (a) when delivered personally, (b) upon
confirmation of receipt when such notice or other communication is sent by
facsimile or telex, (c) one day after delivery to an overnight delivery
courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail.
9. Survival. The obligations of the Company and the Executive under this
Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without
limitation, those under Sections 2, 5 and 6 hereof) shall survive such
expiration.
10. Amendment; Waiver. This Agreement may be amended, modified, superseded, or
canceled, and the terms hereof may be waived, only by a written instrument
executed by all of the parties hereto or, in the case of a waiver, by the
party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the
breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
11. Equitable Relief. Breach of any provision of Sections 5 or 6 of this
Agreement would result in irreparable injuries to the Company, the remedy
at law for any such breach will be inadequate, and upon breach of such
provisions, the Company, in addition to all other available remedies, shall
be entitled as a matter of right to injunctive relief in any court of
competent jurisdiction without the necessity of proving the actual damage
to the Company.
12. Entire Agreement. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes
all prior negotiations, discussions, writings, and agreements between them.
13. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together will
constitute one and the same instrument.
15. Definitions. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(a) "Cause" for termination by the Company of the Executive's employment
shall mean (i) the commission by the Executive of any fraud,
embezzlement or other material act of dishonesty with respect to the
Company or any of its affiliates (including the unauthorized
disclosure of confidential or proprietary information of the Company
or any of its affiliates or subsidiaries); (ii) Executive's conviction
of, or plea of guilty or nolo contendere to, a felony or other crime
involving moral turpitude; (iii) Executive's willful misconduct; (iv)
willful failure or refusal by Executive to perform his duties and
responsibilities to the Company or any of its affiliates which failure
or refusal to perform is not remedied within 30 days after receipt of
a written notice from the Company detailing such failure or refusal to
perform; or (v) Executive's breach of any of the terms of this
Agreement or any other agreement between Executive and the Company
which breach is not cured within 30 days subsequent to notice from the
Company to Executive of such breach.
(b) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the
Executive's inability to perform his duties by reason of any mental,
physical or other disability for a period of at least 6 consecutive
months (for purposes hereof, "disability" has the same meaning as in
the Company's disability policy), the Company shall have given the
Executive a notice of termination for Disability, and, within 30 days
after such notice of termination is given, the Executive shall not
have returned to the full-time performance of the Executive's duties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
RAYOVAC CORPORATION EXECUTIVE
By: /s/ Kent J. Hussey /s/ Stephen P. Shanesy
------------------ ----------------------
Kent J. Hussey Stephen P. Shanesy
President
SEVERANCE AGREEMENT
This Agreement, dated as of 1 October 1998, is made by and between Rayovac
Corporation (the "Company"), a Wisconsin corporation with its principal business
address at 601 Rayovac Drive, Madison, Wisconsin 53711, and Merrell M. Tomlin,
an individual residing at 3576 Timber Lane, Cross Plains, WI 53528 (the
"Executive").
BACKGROUND
The Executive has been, and continues to be, privy to important confidential
information of the Company, and has developed substantial skills and knowledge
related to the Company's industry, which skills and knowledge would be of
substantial value to the Company's competition.
The Company considers it essential to the best interests of its shareholders to
foster the continued employment of key managers, and to limit their ability to
compete with the Company after their employment terminates.
The Executive and the Company wish to execute this Agreement to formalize
additional terms of the Executive's employment.
UNDERTAKINGS
Now therefore, the parties agree:
1. Term of Agreement. The term of this Agreement (the "Term") shall commence
on the date hereof and shall continue in effect through 30 September 1999;
provided, however, that commencing on 1 October 1998 and each year
thereafter, the Term shall automatically extend one additional year unless,
not later than 30 days prior to the end of the preceding Term, the Company
or the Executive shall give notice not to extend the Term.
2. Severance Payments.
2.1 If the Executive's employment is terminated during the Term (a) by the
Company without Cause (as defined below) or (b) by reason of death or
Disability (as defined below), then the Company shall pay the
Executive the amounts, and provide the Executive the benefits,
described in Section 2.2 (the "Severance Payments").
2.2 (a) The Company shall pay to the Executive as severance, an amount in
cash equal to two (2) times the sum of (i) the Executive's base salary
as in effect for the fiscal year ending immediately prior to the
fiscal year in which such termination occurs, and (ii) the annual
bonus (if any) earned by the Executive pursuant to any annual bonus or
incentive plan maintained by the Company in respect of the fiscal year
ending immediately prior to the fiscal year in which the termination
occurs, such cash amount to be paid to the Executive ratably monthly
in arrears over the Non-Competition Period (as defined below).
(b) For the 12-month period immediately following such termination,
the Company shall arrange to provide the Executive and his dependents
insurance benefits substantially similar to those provided to the
Executive and his dependents immediately prior to the date of
termination, at no greater cost to the Executive than the cost to the
Executive immediately prior to such date. Benefits otherwise
receivable by the Executive pursuant to this Section 2.2(b) shall
cease immediately upon the discovery by the Company of the Executive's
breach of the covenants contained in Sections 5 or 6 hereof. In
addition, benefits otherwise receivable by the Executive pursuant to
this Section 2.2(b) shall be reduced to the extent benefits of the
same type are received by or made available to the Executive during
the 12-month period following the Executive's termination of
employment (and any such benefits received by or made available to the
Executive shall be reported to the Company by the Executive);
provided, however, that the Company shall reimburse the Executive for
the excess, if any, of the cost of such benefits to the Executive over
such cost immediately prior to the date of termination.
2.3 Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state, or local law and
any additional withholding to which the Executive has agreed.
2.4 If the Executive's employment with the Company terminates during the
Term, the Executive shall not be required to seek other employment or
to attempt in any way to reduce any amounts payable to the Executive
by the Company pursuant to this Section 2.
3. Termination Procedures. During the Term, any purported termination of the
Executive's employment (other than by reason of death) shall be
communicated by written notice of termination from one party to the other
in accordance with Section 8 hereof. The notice of termination shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated.
4. No Rights to Employment. This Agreement shall not be construed as creating
an express or implied contract of employment, and except as otherwise
agreed in writing between the Executive and the Company and authorized by
the Board of Directors of the Company, the Executive shall not have any
right to be retained in the employ of the Company.
5. Executive's Covenant Not to Compete.
5.1 During the Non-Competition Period, the Executive will not, directly or
indirectly, in any capacity, either separately, jointly, or in
association with others, as an officer, director, consultant, agent,
employee, owner, principal, partner, or stockholder of any business,
or in any other capacity, engage or have a financial interest in any
business which is involved in the design, manufacturing, marketing, or
sale of batteries or battery operated lighting devices (excepting only
the ownership of not more than 5% of the outstanding securities of an
class listed on an exchange or the Nasdaq Stock Market). For purposes
of this Agreement, the "Non-Competition Period" means the period
beginning on the date hereof and continuing until the date which is
the two-year anniversary of the later to occur of (a) the end of the
Term and (b) the date of termination.
5.2 Without limiting the generality of Section 5.1 above, during the
Non-Competition Period the Executive will not, directly or indirectly,
in any capacity, either separately, jointly, or in association with
others, solicit or otherwise contact any of the Company's customers or
prospects that were customers or prospects of the Company at any time
during the Non-Competition Period if such solicitation or contact is
for the general purpose of selling products that satisfy the same
general needs as any products that the Company had available for sale
to its customers or prospects during the Non-Competition Period.
5.3 During the Non-Competition Period, the Executive shall not, other than
in connection with employment for the Company, solicit the employment
or services of any employee of the Company who is or was an employee
of the Company at any time during the Non-Competition Period. During
the Non-Competition Period, the Executive shall not hire any employee
of Company for any other business.
5.4 If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to
time or space, the court is hereby requested and authorized by the
parties to revise the foregoing restrictions to include the maximum
restrictions allowed under the applicable law.
5.5 For purposes of this Section 5 and Section 6, the "Company" refers to
the Company and any incorporated or unincorporated affiliates of the
Company.
6. Secret Processes and Confidential Information.
6.1 The Executive will hold in strict confidence and, except as the
Company may authorize or direct, not disclose to any person or use
(except in the performance of his services hereunder) any confidential
information or materials received by the Executive from the Company or
any confidential information or materials of other parties received by
the Executive in connection with the performance of his duties
hereunder. For purposes of this Section 6.1, confidential information
or materials shall include existing and potential customer
information, existing and potential supplier information, product
information, design and construction information, pricing and
profitability information, financial information, sales and marketing
strategies and techniques, and business ideas or practices. The
restriction on the Executive's use or disclosure of the confidential
information or materials shall remain in force until such information
is of general knowledge in the industry through no fault of the
Executive or any agent of the Executive. The Executive also will
return to the Company promptly upon its request any Company
information or materials in the Executive's possession or under the
Executive's control.
6.2 The Executive will promptly disclose to the Company and to no other
person, firm or entity all inventions, discoveries, improvements,
trade secrets, formulas, techniques, processes, know-how and similar
matters, whether or not patentable and whether or not reduced to
practice, which are conceived or learned by the Executive during the
period of the Executive's employment with the Company, either alone or
with others, which relate to or result from the actual or anticipated
business or research of the Company or which result, to any extent,
from the Executive's use of the Company's premises or property
(collectively called the "Inventions"). The Executive acknowledges and
agrees that all Inventions shall be the sole property of the Company,
and the Executive hereby assigns to the Company all of the Executive's
rights and interests in and to all of the Inventions, it being
acknowledged and agreed by the Executive that all the Inventions are
works made for hire. The Company shall be the sole owner of all
domestic and foreign rights and interests in the Inventions. The
Executive will assist the Company at the Company's expense to obtain
and from time to time enforce patents and copyrights on the
Inventions.
6.3 Upon the request of, and, in any event, upon termination of the
Executive's employment with the Company, the Executive shall promptly
deliver to the Company all documents, data, records, notes, drawings,
manuals, and all other tangible information in whatever form which
pertains to the Company, and the Executive will not retain any such
information or any reproduction or excerpt thereof.
7. Successors; Binding Agreement
7.1 In addition to any obligations imposed by law upon any successor to
the Company, the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. Failure of the
Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to the Severance Payments,
except that, for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the date
of termination. For purposes of this Agreement, "Company" shall mean
Rayovac Corporation, a Wisconsin corporation, and shall include any
successor to its business or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
7.2 This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount would still be
payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the
Executive's estate.
8. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given (a) when delivered personally, (b) upon
confirmation of receipt when such notice or other communication is sent by
facsimile or telex, (c) one day after delivery to an overnight delivery
courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail.
9. Survival. The obligations of the Company and the Executive under this
Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without
limitation, those under Sections 2, 5 and 6 hereof) shall survive such
expiration.
10. Amendment; Waiver. This Agreement may be amended, modified, superseded, or
canceled, and the terms hereof may be waived, only by a written instrument
executed by all of the parties hereto or, in the case of a waiver, by the
party waiving compliance. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the
breach of any term or covenant contained in this Agreement, whether by
conduct or otherwise, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this
Agreement.
11. Equitable Relief. Breach of any provision of Sections 5 or 6 of this
Agreement would result in irreparable injuries to the Company, the remedy
at law for any such breach will be inadequate, and upon breach of such
provisions, the Company, in addition to all other available remedies, shall
be entitled as a matter of right to injunctive relief in any court of
competent jurisdiction without the necessity of proving the actual damage
to the Company.
12. Entire Agreement. This Agreement constitutes the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes
all prior negotiations, discussions, writings, and agreements between them.
13. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in two counterparts, each of
which shall be deemed to be an original but both of which together will
constitute one and the same instrument.
15. Definitions. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(a) "Cause" for termination by the Company of the Executive's employment
shall mean (i) the commission by the Executive of any fraud,
embezzlement or other material act of dishonesty with respect to the
Company or any of its affiliates (including the unauthorized
disclosure of confidential or proprietary information of the Company
or any of its affiliates or subsidiaries); (ii) Executive's conviction
of, or plea of guilty or nolo contendere to, a felony or other crime
involving moral turpitude; (iii) Executive's willful misconduct; (iv)
willful failure or refusal by Executive to perform his duties and
responsibilities to the Company or any of its affiliates which failure
or refusal to perform is not remedied within 30 days after receipt of
a written notice from the Company detailing such failure or refusal to
perform; or (v) Executive's breach of any of the terms of this
Agreement or any other agreement between Executive and the Company
which breach is not cured within 30 days subsequent to notice from the
Company to Executive of such breach.
(b) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the
Executive's inability to perform his duties by reason of any mental,
physical or other disability for a period of at least 6 consecutive
months (for purposes hereof, "disability" has the same meaning as in
the Company's disability policy), the Company shall have given the
Executive a notice of termination for Disability, and, within 30 days
after such notice of termination is given, the Executive shall not
have returned to the full-time performance of the Executive's duties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
RAYOVAC CORPORATION EXECUTIVE
By: /s/ Kent J. Hussey /s/ Merrell M. Tomlin
------------------ ---------------------
Kent J. Hussey Merrell M. Tomlin
President
Subsidiary Jurisdiction of Organization
- ---------- ----------------------------
ROV Holding, Inc. Delaware
Rayovac Europe B.V. Netherlands
Rayovac Far East Limited Hong Kong
Rayovac Canada Inc. Canada
Rayovac Europe Limited United Kingdom
Rayovac (UK) Limited United Kingdom
Rovcal, Inc. California
Consent of KPMG Peat Marwick LLP
The Board of Directors
Rayovac Corporation:
We consent to incorporation by reference in the registration statement on Form
S-3, of Rayovac Corporation of our reports dated November 9, 1998, except as to
note 19 which is as of December 23, 1998, relating to the consolidated balance
sheets of Rayovac Corporation and Subsidiaries as of September 30, 1997 and
1998, and the related consolidated statements of operations, shareholders'
equity (deficit), and cash flows and related financial statement schedule for
the years then ended, which reports appear or are incorporated by reference in
the September 30, 1998, Annual Report on Form 10-K of Rayovac Corporation.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Milwaukee, Wisconsin
December 23, 1998
Consent of Independent Auditors
We consent to incorporation by reference in the registration statements (File
Nos. 333-39239, 333-42443, 333-41815) on Form S-8 of Rayovac Corporation and
Subsidiaries of our report dated November 22, 1996, except for Note 2p as to
which the date is April 1, 1998, on our audits of the consolidated statements of
operations, shareholders' equity (deficit), and cash flows of the Rayovac
Corporation and Subsidiaries for the year ended June 30, 1996 and the period
July 1, 1996 to September 30, 1996, which report is included in this Annual
Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
Milwaukee, Wisconsin
December 23, 1998
5
12-MOS
SEP-30-1998
SEP-30-1998
$1,594
0
105,691
1,356
62,762
183,420
155,553
84,186
286,341
98,173
152,276
0
0
569
21,305
286,341
495,733
495,733
0
258,027
195,650
1,356
15,670
25,030
8,660
16,370
0
(1,975)
0
$14,395
0.54
0.51
