As filed with the Securities and Exchange Commission on August 23, 2001
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RAYOVAC CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 22-2423556
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
601 Rayovac Drive, Madison, Wisconsin 53711-2497
(Address of Principal Executive Offices) (Zip Code)
1997 Rayovac Incentive Plan
(Full title of the plan)
James T. Lucke, Esq.
Vice President, General Counsel and Secretary
Rayovac Corporation
601 Rayovac Drive
Madison, Wisconsin 53711-2497
(608) 275-3340
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Margaret A. Brown, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, MA 02108-3194
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CALCULATION OF REGISTRATION FEE
Title Of Securities To Be Amount To Be Proposed Maximum Proposed Maxi- Amount Of
Registered Registered (1) Offering mum Aggregate Registration
Price Per Share (2) Offering Price (2) Fee
------------------------- ---------------- ------------------- ------------------ -------------
Common Stock, par value
$.01 per share (1) 2,000,000 shares $19.84 $39,680,000.00 $9,920.00
============================ ==================== =================== ================== =============
(1) In accordance with Rule 416 of the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also includes an
indeterminate number of shares that may be subject to issuance as a
result of anti-dilution and other provisions of the 1997 Rayovac
Incentive Plan, as amended (the "1997 Incentive Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities
Act, based on the average of the high and low prices per share of the
common stock of the Registrant, par value $.01 per share (the "Common
Stock"), reported on the New York Stock Exchange on August 20, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Commission. The
following documents, which are on file with the Commission, are incorporated
in this Registration Statement by reference:
(1) Annual Report on Form 10-K for the year ended September 30, 2000;
(2) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act, since September 30, 2000;
and
(3) The description of Common Stock contained in the Registrant's
Registration Statement on Form S-1 (Registration No. 333-35181).
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares of Common Stock being registered by this
Registration Statement has been passed upon by James T. Lucke, Esq., who is
the Vice President, General Counsel and Secretary of the Registrant. At the
time of preparing his opinion, and at all times thereafter through the date of
effectiveness of this Registration Statement, Mr. Lucke held options to
purchase 60,000 shares of Common Stock under the 1997 Incentive Plan. Of the
options held by Mr. Lucke, none were exercisable except for options to
purchase 12,500 shares of Common Stock at an exercise price of $22.25 per
share.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law (the "WBCL") and
the Registrant's Amended and Restated By-Laws, directors and officers of the
Registrant are entitled to mandatory indemnification from the Registrant
against certain liabilities and expenses (i) to the extent such directors or
officers are successful in the defense of a proceeding and (ii) in proceedings
in which the director or officer is not successful in the defense thereof,
unless (in the latter case only) it is determined that the director or officer
breached or failed to perform his duties to the Registrant and such breach or
failure constituted (a) a willful failure to deal fairly with the Registrant
or its shareholders in connection with a matter in which the director or
officer had a material conflict of interest; (b) a violation of the criminal
law unless the director or officer had reasonable cause to believe that his or
her conduct was lawful or had no reasonable cause to believe that his or her
conduct was unlawful; (c) a transaction from which the director or officer
derived an improper personal profit; or (d) willful misconduct. The WBCL also
provides that, subject to certain limitations, the mandatory indemnification
provisions do not preclude any additional right to indemnification or allowance
of expenses that a director or officer may have under the Registrant's Amended
and Restated Articles of Incorporation, Amended and Restated By-Laws, a written
agreement or a resolution of the Board of Directors or shareholders. Further,
the WBCL specifically states that it is the public policy of Wisconsin to
require or permit indemnification in connection with a proceeding involving
securities regulation, as described therein, to the extent required or permitted
as described above. Additionally, under the WBCL, directors of the Registrant
are not subject to personal liability to the Registrant, its shareholders or
any person asserting rights on behalf thereof for certain breaches of or
failures to perform any duty resulting solely from their status as directors,
except in circumstances paralleling those in subparagraphs (a) through (d)
outlined above.
Expenses for the defense of any action for which indemnification may
be available may be advanced by the Registrant under certain circumstances.
The general effect of the foregoing provisions may be to reduce the
circumstances in which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expenses.
The Registrant has purchased directors' and officers' liability
insurance which would indemnify the directors and officers of the Registrant
against damages arising out of certain kinds of claims which might be made
against them based on their negligent acts or omissions while acting in their
capacity as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
a. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any material information with respect to
the plan of distribution not previously disclosed
in this Registration Statement or any material
change to such information in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
b. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Madison, State of Wisconsin, on this 23rd day of
August, 2001.
RAYOVAC CORPORATION
By: /s/ Randall J. Steward
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Randall J. Steward
Executive Vice President of Administration
and Chief Financial Officer
Power of Attorney and Signatures
We, the undersigned officers and directors of the Registrant, hereby
severally constitute David A. Jones, Kent J. Hussey, Randall J. Steward and
James T. Lucke, and each of them individually, our true and lawful
attorneys-in-fact with full power to them, and each of them singly, to sign
for us and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all subsequent amendments to said
Registration Statement, and generally to do all such things in our names and
behalf in our capacities as officers and directors to enable the Registrant to
comply with all requirements of the Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys-in-fact, or
any of them, to said Registration Statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated on August 23, 2001:
/s/ David A. Jones Chairman of the Board of Directors
- ------------------------------- and Chief Executive Officer
David A. Jones (Principal Executive Officer)
/s/ Kent J. Hussey President and Chief Operating Officer
- ------------------------------- and Director
Kent J. Hussey
/s/ Randall J. Steward Executive Vice President of Administration
- ------------------------------- and Chief Financial Officer (Principal
Randall J. Steward Financial and Accounting Officer)
/s/ John S. Lupo Director
- -------------------------------
John S. Lupo
/s/ Philip F. Pellegrino Director
- -------------------------------
Philip F. Pellegrino
/s/ Thomas R. Shepherd Director
- -------------------------------
Thomas R. Shepherd
/s/ Warren C. Smith, Jr. Director
- -------------------------------
Warren C. Smith, Jr.
Exhibit Index
Exhibit
Number Description
3.1(3) Amended and Restated Articles of Incorporation of the Registrant.
3.2(5) Amended and Restated By-Laws of the Registrant, as amended through May 17, 1999.
4.1(1) Shareholders Agreement, dated as of September 12, 1996, by and among the Registrant
and the shareholders of the Registrant referred to therein.
4.2(1) Amendment No. 1 to Rayovac Shareholders Agreement, dated as of August 1, 1997,
by and among the Registrant and the shareholders of the Registrant referred to
therein.
4.3(4) Amendment No. 2 to Rayovac Shareholders Agreement, dated as of January 8, 1999, by
and among the Registrant and the shareholders of the Registrant referred to therein.
4.4(6) Amendment No. 3 to Rayovac Shareholders Agreement, dated as of January 1, 2001, by
and among the Registrant and the shareholders of the Registrant referred to therein.
4.5(2) Specimen Certificate of Common Stock, $.01 par value per share, of the Registrant.
5.1 Opinion of James T. Lucke, Esq.
23.1 Consent of James T. Lucke, Esq. (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included in the signature pages of this Registration Statement).
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(1) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended June 29, 1997, filed with the Commission on August 13, 1997.
(2) Incorporated by reference to the Registrant's Registration Statement on Form S-1 (Registration No.
333-35181) as declared effective by the Commission on November 20, 1997.
(3) Incorporated by reference to the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997, filed with the Commission on December 23, 1997.
(4) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended January 3, 1999, filed with the Commission on February 17, 1999.
(5) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended April 4, 1999, filed with the Commission on May 17, 1999.
(6) Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended December 31, 2000, filed with the Commission on February 14, 2001.
EXHIBIT 5.1
OPINION OF JAMES T. LUCKE, ESQ.
August 23, 2001
Rayovac Corporation
601 Rayovac Drive
Madison, Wisconsin 53711
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am Vice President, Secretary and General Counsel to Rayovac
Corporation, a Wisconsin corporation (the "Registrant"), and am issuing this
opinion in connection with the preparation of a Registration Statement on Form
S-8 (the "Registration Statement"), for the purpose of registering with the
Securities and Exchange Commission (the "Commission"), under the Securities
Act of 1933, as amended (the "Securities Act"), 2,000,000 shares of common
stock, par value $.01 per share (the "Common Stock"), of the Registrant
issuable upon the exercise of options to be granted under the Registrant's
1997 Rayovac Incentive Plan, as amended (the "1997 Incentive Plan"), or upon
the grant of stock appreciation rights, restricted stock or other stock-based
awards under the 1997 Incentive Plan.
This opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
(i) the Registration Statement in the form to be filed with the Commission on
the date hereof under the Securities Act; (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 Registrant, each as
currently in effect; (v) certain resolutions adopted by the Board of Directors
of the Registrant relating to the 1997 Incentive Plan and certain related
matters; and (vi) the 1997 Incentive Plan. I have also examined originals or
copies, certified or otherwise identified to my satisfaction, of such records
of the Registrant and such other documents, certificates and records as I have
deemed necessary or appropriate as a basis for the opinion set forth herein.
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and
the authenticity of the originals of such copies. In making my examination of
documents executed or to be executed by parties other than the Registrant, I
have assumed that such parties had or will have the power, corporate or other,
to enter into and perform all obligations thereunder and I have also assumed
the due authorization by all requisite action, corporate or other, and
execution and delivery by such parties of such documents and the validity and
binding effect thereof on such parties. As to any facts material to the
opinion expressed herein which I have not independently established or
verified, I have relied upon statements and representations of officers and
other representatives of the Registrant and others. I have assumed that each
option or award agreement setting forth the terms of each grant of options or
other awards under the 1997 Incentive Plan is consistent with the 1997
Incentive Plan and will be duly authorized and validly executed and delivered
by the parties thereto, and that the consideration received by the Registrant
for the Common Stock delivered pursuant to the 1997 Incentive Plan will be in
an amount at least equal to the par value of such Common Stock. I have also
assumed that, upon issuance, the stock certificates evidencing such Common
Stock will be manually signed by an authorized officer of the transfer agent
and registrar for the Common Stock and registered by such transfer agent and
registrar and will conform to the specimen stock certificate examined by me.
I am admitted to the practice of law in the State of Wisconsin, and I
do not express any opinion as to the laws of any other jurisdiction and I do
not express any opinion as to the effect of any other laws on the opinion
stated herein.
Based upon and subject to the foregoing, I am of the opinion
that the shares of Common Stock issuable under the 1997 Incentive Plan have
been duly authorized for issuance by the Registrant and, when such shares of
Common Stock have been paid for and certificates therefor have been issued and
delivered in accordance with the terms of the 1997 Incentive Plan, such shares
of Common Stock will be validly issued, fully paid and nonassessable except to
the extent such shares of Common Stock are assessable as provided in Section
180.0622 of the Wisconsin Business Corporation Law.
This opinion is furnished by me, as counsel to the Registrant, in
connection with the filing of the Registration Statement with the Commission
and, except as provided in the immediately preceding paragraph, is not to be
used, circulated, quoted or otherwise referred to for any other purpose
without my express written permission or relied upon by any other person.
Very truly yours,
/s/ James T. Lucke
-----------------------------
James T. Lucke, Esq.
Vice President, Secretary
and General Counsel
EXHIBIT 23.2
CONSENT OF KPMG LLP
The Board of Directors
Rayovac Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 of Rayovac Corporation of our reports dated November 3, 2000, relating to
the consolidated balance sheets of Rayovac Corporation and subsidiaries as of
September 30, 1999 and 2000, and the related consolidated statements of
operations, comprehensive income, shareholders' equity and cash flows for each
of the years in the three-year period ended September 30, 2000 and the related
schedule, which reports appear in the Annual Report on Form 10-K of Rayovac
Corporation.
/s/ KPMG LLP
Milwaukee, Wisconsin
August 21, 2001
