Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
RAYOVAC CORPORATION
--------------------
(Exact name of registrant as specified in its charter)
Wisconsin 22-2423556
- ---------------------------- ---------------------------
(State of Incorporation) I.R.S. Employer I.D. No.
601 Rayovac Drive
Madison, Wisconsin 53711
- ---------------------------------------- -------------
(Address of Principal Executive Offices) (Zip Code)
RAYOVAC 401(k) SAVINGS PLAN FOR HOURLY EMPLOYEES
------------------------------------------------
(Full title of the plan)
James A. Broderick, Esq.
Vice President and General Counsel
Rayovac Corporation
601 Rayovac Drive
Madison, Wisconsin 53711
------------------------
(Name and address of agent for service)
(608) 275-3340
--------------
(Telephone number, including area code
of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Securities Amount to be offering/price registration offering
to be Registered Registered per share price Amount of fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Interests in the Rayovac
401(k) Savings Plan for
Hourly Employees
(1) (1) (1) (2)
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement covers an
indeterminate amount of interests to be offered or sold pursuant to the
Rayovac 401(k) Savings Plan for Hourly Employees.
(2) Pursuant to Rule 457(h)(2) under the Securities Act, no separate
registration fee is required with respect to the plan interests being
registered hereby.
<PAGE>
PART II - INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Rayovac Corporation (the "Registrant"
or the "Company") or the Rayovac 401(k) Savings Plan for Hourly Employees (the
"Plan") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Registration Statement on Form S-1 (Registration
No. 333-35181) of the Company.
(b) All other reports filed by the Registrant pursuant to
sections 13(a) or 15(d) of the Exchange Act since September 30, 1996.
All reports and other documents subsequently filed by the Registrant or
the Plan 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
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law (the "WBCL") and the
Registrant's 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 articles of incorporation, 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 to
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.
<PAGE>
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 which an officer or director may be required to bear the economic
burden of the foregoing liabilities and expense.
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.
Exhibit No. Description
4.1 Rayovac 401(k) Savings Plan for Hourly Employees
23.1 Consent of KPMG Peat Marwick L.L.P.
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this
Registration Statement).
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes as
follows:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement.
(b) That, for purposes of determining any liability
under the Securities Act of 1933, 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.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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.
2
<PAGE>
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 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 of 1933 and will be governed by the final adjudication of such issue.
4. That it will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service in a timely manner, and has
made or will make all changes which may be required by the Plan.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 December 8,
1997.
RAYOVAC CORPORATION
BY /s/ David A. Jones
--------------------------------------
David A. Jones, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints David A. Jones, Kent J. Hussey and James A. Broderick, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ David A. Jones Chairman of the Board, President December 8, 1997
- ------------------------ and Chief Executive Officer
David A. Jones (Principal Executive Officer)
/s/ Kent J. Hussey Executive Vice President of December 8, 1997
- ------------------------ Finance and Administration,
Kent J. Hussey Chief Financial Officer and
Director (Principal Financial
Officer)
/s/ Roger F. Warren Director December 8, 1997
- ------------------------
Roger F. Warren
/s/ Trygve Lonnebotn Director December 8, 1997
- ------------------------
Trygve Lonnebotn
/s/ Scott A. Schoen Director December 8, 1997
- ------------------------
Scott A. Schoen
4
<PAGE>
/s/ Thomas R. Shepherd Director December 8, 1997
- ------------------------
Thomas R. Shepherd
/s/ Warren C. Smith, Jr Director December 8, 1997
- ------------------------
Warren C. Smith, Jr.
</TABLE>
5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
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 December 8, 1997.
RAYOVAC 401(k) SAVINGS PLAN FOR HOURLY EMPLOYEES
BY: RAYOVAC CORPORATION, Plan
Administrator
BY /s/ Russell E. Lefevre
-----------------------------------------
Russell E. Lefevre, Vice President, Human
Resources
6
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description Page
- ----------- ----------- ----
4.1 Rayovac 401(k) Savings Plan for Hourly Employees
23.1 Consent of KPMG Peat Marwick L.L.P.
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on the signature page of this
Registration Statement).
7
RAYOVAC 401(k) SAVINGS PLAN
FOR HOURLY EMPLOYEES
Effective January 1, 1998
<PAGE>
RAYOVAC 401(k) SAVINGS PLAN
FOR HOURLY EMPLOYEES
TABLE OF CONTENTS
Page
----
ARTICLE 1 THE PLAN, DEFINITIONS
AND CONSTRUCTION
1.1 The Plan 1-1
1.2 Definitions 1-1
1.3 Construction 1-5
ARTICLE 2 ELIGIBILITY AND PARTICIPATION
2.1 Eligible Class of Employees 2-1
2.2 Commencement of Participation 2-1
2.3 Termination of Participation 2-1
2.4 Reemployment 2-1
2.5 Reinstatement of Participation 2-1
ARTICLE 3 CONTRIBUTIONS AND ALLOCATIONS
3.1 Contribution and Allocation Restrictions 3-1
3.2 Elective Contributions 3-1
3.3 Rollovers from Other Employee Benefit Plans 3-3
3.4 Participant After-Tax Contributions 3-3
3.5 Determination of Contributions 3-3
3.6 Time of Payment of Contributions 3-3
3.7 Return of Contributions 3-3
ARTICLE 4 VALUATION
4.1 Allocation of Income to Accounts 4-1
4.2 Valuation of Participant's Account 4-1
i
<PAGE>
ARTICLE 5 CONTRIBUTION AND ALLOCATION
RESTRICTIONS
5.1 Maximum Limits on Allocations 5-1
5.2 Limitations for Defined Benefit and Defined Contribution
Plans Covering the Same Employee 5-3
5.3 Actual Deferral Percentage Test 5-3
5.4 Highly Compensated Employee 5-5
ARTICLE 6 VESTING
6.1 Vesting 6-1
ARTICLE 7 DISTRIBUTIONS
7.1 Commencement of Retirement Benefits 7-1
7.2 Method of Payment 7-2
7.3 Death Benefits 7-3
7.4 Required Lifetime Distributions 7-4
7.5 Qualified Domestic Relations Orders 7-5
7.6 Loans 7-6
7.7 Hardship Withdrawals 7-6
7.7 Withdrawals On or After Age 59-1/2 7-7
ARTICLE 8 ADMINISTRATION OF THE PLAN
8.1 Appointment of Separate Administrator 8-1
8.2 Powers and Duties 8-1
8.3 Records and Notices 8-2
8.4 Compensation and Expenses 8-3
8.5 Limitation of Authority 8-3
ARTICLE 9 ADMINISTRATION OF THE TRUST
9.1 Appointment of Trustee 9-1
9.2 Authorization for Trust Agreement 9-1
9.3 Participant Direction of Investment of Account 9-1
9.4 Funding Policy 9-2
ii
<PAGE>
ARTICLE 10 CLAIMS PROCEDURE
10.1 Application for Benefits 10-1
10.2 Notice of Denied Claim for Benefits 10-1
10.3 Review of Denied Claim 10-1
ARTICLE 11 AMENDMENT AND TERMINATION
11.1 Amendment or Restatement 11-1
11.2 Termination and Discontinuance of Contributions 11-1
11.3 Distribution Upon Termination 11-1
11.4 Merger, Consolidation or Transfer of Assets and Liabilities 11-2
11.5 Distribution Upon Disposition of Assets or Subsidiary 11-2
11.6 Successor Employer 11-2
ARTICLE 12 GENERAL PROVISIONS
12.1 Limitation on Liability 12-1
12.2 Indemnification 12-1
12.3 Compliance with Employee Retirement Income Security
Act of 1974 12-1
12.4 Nonalienation of Benefits 12-1
12.5 Employment Not Guaranteed by Plan 12-2
12.6 Form of Communication 12-2
12.7 Facility of Payment 12-2
12.8 Location of Participant or Beneficiary Unknown 12-2
12.9 Service in More Than One Fiduciary Capacity 12-2
12.10 Offset 12-2
12.11 Military Leave of Absence 12-3
Appendix A - Madison UAW, Local Union 1329
Appendix B - Madison IAM, Badger Lodge No. 1406
Appendix C - Fennimore - Teamsters, Local Union 695
- --------------------------------------------------------------------------------
This document reflects the provisions of the Reinhart,
Boerner, Van Deuren, Norris & Rieselbach, s.c. Volume Submitter Master Document.
The Master Document has been reviewed in advance by the Internal Revenue Service
(the "IRS"). Use of the Volume Submitter Master Document results in (1)
expedited IRS review of the Company's plan and (2) lower IRS filing fees. Except
for the Company's own retirement plan purposes, this document is copyrighted and
cannot be reproduced, in whole or in part, without the express prior written
permission of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, s.c.
- --------------------------------------------------------------------------------
iii
<PAGE>
ARTICLE 1
The Plan, Definitions and Construction
1.1 The Plan. Effective January 1, 1998, Rayovac Corporation
(the "Company") adopted a profit sharing plan to benefit certain of its
employees by facilitating the accumulation of funds for their retirement. As
adopted, the Plan incorporates a cash or deferred arrangement permitted by
section 401(k) of the Internal Revenue Code.
The Company intends the Plan to comply with sections 401(a)
and 401(k) of the Internal Revenue Code of 1986, as amended. This introduction
and the following Articles and Appendices, as amended from time to time,
comprise the Plan. With respect to each participating group, to the extent any
provisions of the Plan are contrary to the provisions of the applicable
Appendix, the provisions of the Appendix shall control.
1.2 Definitions.
(a) Account. The record of each Participant's interest in
the Trust Fund.
(b) Administrator. The Company or individual(s) designated
in Article 8 who shall control and manage the operation and administration of
the Plan as the named fiduciary.
(c) Code. The Internal Revenue Code of 1986, as amended
from time to time, and as interpreted by applicable regulations and rulings.
(d) Company. Rayovac Corporation, the sponsoring employer,
and any successor which adopts the Plan. The board of directors of the Company,
or such board members authorized by the board of directors from time to time,
shall act on behalf of the Company for purposes of the Plan. In no event shall a
self-employed individual or owner-employee (within the meaning of Code section
401(c)) be considered a "company" eligible to adopt the provisions of the Plan.
(e) Compensation.
(1) In General. Except as otherwise provided,
Compensation shall mean an employee's base wage, incentive pay, overtime pay,
1-1
<PAGE>
shift differential pay, dirt pay, shower time pay, jury duty pay, funeral leave
pay, vacation pay and holiday pay.
(2) Inclusion of Elective Contributions.
"Compensation" includes elective contributions made by the Employer on behalf of
the employee that are not includable in income under a cafeteria plan (pursuant
to Code section 125), a Code section 401(k) arrangement (pursuant to Code
section 402(a)(8)), a simplified employee pension (pursuant to Code section
402(h)) or a tax-sheltered annuity or account (pursuant to Code section 403(b));
compensation deferred under an eligible deferred compensation plan of a state or
local government or tax-exempt organization within the meaning of Code section
457(b) and employee contributions under governmental plans described in Code
section 414(h)(2).
(3) Additional Rules.
(A) Annual Compensation Limit. The annual
Compensation of each Participant in any Plan Year shall not exceed the annual
compensation limit pursuant to Code section 401(a)(17). The annual compensation
limit shall be adjusted annually for increases in the cost of living by the
Secretary of the Treasury or his delegate, except that the dollar increase in
effect on January 1 of any calendar year is effective for Plan Years beginning
in such calendar year. The "annual compensation limit" is $150,000, as indexed.
(B) Received While a Plan Participant. For
purposes of contributions pursuant to Article 3 and section 5.3 (ADP testing),
the Administrator may uniformly limit the period for which Compensation shall be
taken into consideration to the portion of the Plan Year in which the employee
was a Participant in the Plan.
(f) Effective Date. January 1, 1998, the date as of which
the Plan first applies to the Company; as to each Employer, the date as of which
the Plan first applied to each Employer.
(g) Elective Contributions. Employer contributions made to
the Plan on a pretax basis that were subject to a cash or deferred election
pursuant to section 3.2.
(h) Employer. The Company or any other entity which,
consistent with authorization by the Company, has adopted the Plan and any
successor thereto. By its adoption of this Plan, an Employer shall be deemed to
appoint the Company, Administrator and Trustee its exclusive agents to exercise
on its behalf all of the power and authority conferred by this Plan upon the
Employer. The authority of the Company, Administrator and Trustee to act as
1-2
<PAGE>
such agent shall continue until this Plan is terminated as to the adopting
Employer and the relevant Trust Fund assets have been distributed by the
Trustee.
In no event shall a self-employed individual or
owner-employee (within the meaning of Code section 401(c)) be considered an
"employer" eligible to adopt the provisions of the Plan.
For each Plan Year, the Plan shall deem an individual
an employee of the Employer who employs the individual on the last day of the
Plan Year or the last day during the Plan Year for which the individual accrues
an Hour of Service. The board of directors of the Employer, or such board
members authorized by the board of directors from time to time, shall act on
behalf of the Employer for purposes of the Plan.
(i) Employment. An individual's employment with the
Employer. In the event an employee is transferred between participating
Employers, such employee shall not be deemed to have terminated his Employment.
(j) Hour of Service.
(1) Each hour for which an employee is paid, or
entitled to payment, for the performance of service for the Employer;
(2) Each hour for which an employee is paid, or
entitled to payment by the Employer without the performance of service
(regardless of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability), lay off, jury
duty, military duty, or leave of absence (pursuant to this paragraph (2), no
more than 501 Hours of Service will be credited for any single continuous
period--whether or not such period occurs in a single Plan Year or other
computation period--and 29 C.F.R. section 2530.200b-2 and 3 shall govern the
determination of an individual's Hours of Service); and
(3) Each hour for which back pay, regardless of any
mitigation of damages, is either awarded or agreed to by the Employer.
The same Hours of Service will not be credited
pursuant to paragraphs (1) or (2), as the case may be, and paragraph (3).
(k) Income. The net gain or loss of the Trust Fund from
investments including, but not limited to, interest, dividends, rents, profits,
realized and unrealized gains and losses and expenses of the Plan or Trust Fund
paid from
1-3
<PAGE>
the Trust Fund. To determine the Income of the Trust Fund for any period, the
Trustee shall value the Trust Fund on the basis of its assets' fair market
value.
(l) Leased Employee. Any person (other than an employee of
the Employer) who, pursuant to an agreement between the Employer and any other
person (the "leasing organization"), has performed services for the Employer (or
for the Employer and related persons determined in accordance with Code section
414(n)(6)) on a substantially full-time basis for a period of at least one year
and such services are performed under primary direction or control by the
recipient.
In no event shall a Leased Employee be considered an
employee of the Employer if: (1) the Leased Employee is covered by a money
purchase pension plan providing a nonintegrated employer contribution rate of at
least 10% of Compensation as defined in section 5.1(c) (including amounts
contributed pursuant to a salary reduction agreement under Code sections 125,
402(a)(8), 402(h) or 403(b)), immediate participation and full and immediate
vesting and (2) the Leased Employees equal no more than 20% of the Employer's
nonhighly compensated employees.
(m) Normal Retirement Age. A Participant's 65th birthday.
(n) Participant. Any individual who has satisfied the
eligibility and participation requirements of the Plan as provided in Article 2.
Where appropriate, the term "Participant" also includes former Participants who
are no longer eligible to participate under the provisions of Article 2, or
beneficiaries of a deceased Participant, or an alternate payee, as defined in
Code Section 414(p)(8), for whom an Account exists which has not been
distributed or forfeited in total.
(o) Plan. The Rayovac 401(k) Savings Plan for Hourly
Employees, as stated herein and as amended from time to time.
(p) Plan Year. The period beginning on the Effective Date
and ending on December 31, 1998, and each 12-month period ending on each
subsequent December 31.
(q) Trust Fund. The assets of the Plan held in trust by a
Trustee and/or the assets of the Plan which consist of insurance contracts or
policies issued by an insurance company.
(r) Trustee. The person(s) or entity holding the assets of
the Plan in trust or, in the case of a Trust Fund consisting solely of insurance
contracts, the insurer. The use of the term Trustee to refer to the insurer is
not
1-4
<PAGE>
intended to indicate that the insurer is a trustee within the meaning of state
or federal statutory or common law, but merely for convenience of reference in
the Plan.
(s) Valuation Date. The last day of the Plan Year and each
business day of the Plan Year or such other dates as the Administrator
determines for the purpose of valuing the Trust Fund pursuant to Article 4.
1.3 Construction. Except to the extent preempted by the
Employee Retirement Income Security Act of 1974, the laws of the State of
Wisconsin, as amended from time to time, shall govern the construction and
application of the Plan. Words used in the masculine gender shall include the
feminine and words in the singular shall include the plural, as appropriate. The
words "hereof," "herein," "hereunder" and other similar compounds of the word
"here" shall refer to the entire Plan, not to a particular section. Any mention
of "Articles," "sections" and subdivisions thereof, unless stated specifically
to the contrary, refers to Articles, sections or subdivisions thereof in the
Plan. All references to statutory sections shall include the section so
identified, as amended from time to time, or any other statute of similar
import. If any provisions of the Code or the Employee Retirement Income Security
Act of 1974 render any provision of this Plan unenforceable, such provision
shall be of no force and effect only to the minimum extent required by such law.
1-5
<PAGE>
ARTICLE 2
Eligibility and Participation
2.1 Eligible Class of Employees. An employee eligible to
participate in the Plan is any employee of an Employer who is a member of a
participating group as identified in an Appendix to the Plan.
2.2 Commencement of Participation. An employee who meets the
eligibility requirements of section 2.1 shall commence participation in the Plan
as follows:
(a) Employees Hired Prior to January 1, 1998. An employee
who performs an Hour of Service prior to January 1, 1998 shall commence
participation in the Plan on the Effective Date.
(b) Employees Hired On or After January 1, 1998. An
employee who performs his first Hour of Service on or after January 1, 1998
shall commence participation in the Plan as of the first day of the Plan Year
immediately following the date the employee performs his first Hour of Service.
2.3 Termination of Participation. On the date a Participant's
Employment terminates or, if earlier, the date he no longer is a member of the
eligible class of employees pursuant to section 2.1, the Participant shall be
deemed a former Participant. Status as a former Participant shall continue until
the date the Plan has satisfied all liabilities with respect to the former
Participant.
2.4 Reemployment. If an employee terminates Employment either
before or after becoming a Participant and subsequently resumes Employment, the
rehired employee may participate in the Plan on the first day of the month
following the date his Employment resumes.
2.5 Reinstatement of Participation. In the event an employee
who is not a member of an eligible class of employees becomes a member of an
eligible class of employees pursuant to section 2.1, such employee shall
participate in the Plan on the first day of the month following the date he (1)
transfers to an eligible class of employees if such employee has previously
satisfied the eligibility requirements of section 2.2, or (2) satisfies the
eligibility requirements of section 2.2 if he had not done so previously.
If a Participant ceases participating in the Plan because
he no longer is a member of an eligible class of employees pursuant to section
2.1, he shall resume participation in the Plan on the first day of the month
following the date he again becomes a member of an eligible class of employees
pursuant to section 2.1.
2-1
<PAGE>
3-4
ARTICLE 3
Contributions and Allocations
3.1 Contribution and Allocation Restrictions. All
contributions and allocations provided for in this Article 3 are subject to the
limitations and restrictions set forth in Article 5.
3.2 Elective Contributions.
(a) Amount. For each Plan Year, a Participant may direct
the Employer to make Elective Contributions on his behalf directly to the Trust
Fund. The Employer shall make Elective Contributions on behalf of a Participant
in lieu of the Employer's payment of an equal amount to the Participant as
direct remuneration for the Plan Year; provided the Participant elects to defer
such amounts prior to the date such amounts become currently available to the
Participant. Such amounts may be contributed to the Plan only if such amounts
would have been received by the Participant, but for the Participant's election,
on or before 2-1/2 months following the end of the Plan Year. A Participant may
so elect only as to amounts becoming currently available after the cash or
deferred arrangement of this Plan is adopted and effective. A Participant's
Elective Contributions may not exceed the lesser of (1) 15-percent of the
Participant's Compensation for a Plan Year, or (2) for each calendar year, the
$7,000 limit of Code section 402(g) as adjusted annually for increases in the
cost of living by the Secretary of the Treasury or his delegate and as in effect
for such calendar year.
(b) Allocation. As of the last day of each payroll period
and following the allocation of Income pursuant to Article 4, the Administrator
shall allocate the Elective Contributions for such period to the Accounts of the
Participants for whom such contributions were made.
(c) Enrollment. The initial enrollment date shall be
January 1, 1998. After the initial enrollment date, Participants may enroll to
make Elective Contributions effective as of any January 1, April 1, July 1 or
October 1. A Participant shall enroll by filing with the Administrator a written
election (on a form acceptable to the Administrator) directing the Employer to
make Elective Contributions in any whole percentage from one- to
fifteen-percent. The Participant must file the written election with the
Administrator within a reasonable time as determined by the Administrator prior
to the effective date.
3-1
<PAGE>
Once filed, a Participant's written election
authorizing Elective Contributions will remain in effect until amended or
discontinued pursuant to paragraphs (d) and (e) below.
(d) Discontinue Elective Contributions. Unless otherwise
authorized pursuant to rules prescribed by the Administrator, a Participant may
entirely discontinue his elective contributions effective as of any enrollment
date provided in paragraph (c) above by filing with the Administrator, within a
reasonable time as determined by the Administrator prior to the effective date,
a revised written election directing the Employer to discontinue his elective
contributions. The Participant's subsequent enrollment will be effective only as
of the dates provided and pursuant to the terms specified in paragraph (c)
above.
(e) Increase or Decrease in Elective Contributions. Unless
otherwise authorized pursuant to rules prescribed by the Administrator, a
Participant may increase or decrease the amount of his elective contributions
effective as of any enrollment date provided in paragraph (c) above by filing a
revised written election with the Administrator within a reasonable time, as
determined by the Administrator, prior to the effective date.
(f) Return of Excess Elective Contributions. If a
Participant notifies the Administrator in writing by the March 1 following the
close of a calendar year, or by the April 15 following such March 1 the Employer
designates on behalf of the Participant with respect to Elective Contributions
under the Plan and any other plans of the Employer, that the Participant has
made excess Elective Contributions for that year, the Administrator shall
distribute to the Participant the amount of the excess Elective Contributions
allocable to the Plan (plus, or minus any Income or loss allocable thereto up to
the close of the calendar year). Such distribution shall occur by the April 15
immediately following the close of the calendar year in which the excess
Elective Contributions were contributed to the Plan. The amount of excess
Elective Contributions for any calendar year shall equal (1) the sum of amounts
contributed to the Plan as Elective Contributions on behalf of the Participant
plus amounts deferred by the Participant pursuant to other arrangements
described in Code sections 401(k), 408(k) and 403(b) (the "total Elective
Contributions") minus (2) the greater of the $7,000 limit of Code section
402(g), as adjusted annually for increases in the cost of living by the
Secretary of the Treasury or his delegate from time to time, or $9,500, which
alternate limit applies to only Elective Contributions added to deferrals made
pursuant to an arrangement described in Code section 403(b). The Participant's
written notification must contain a statement to the effect that, if such excess
Elective Contributions were not distributed, the Participant's total Elective
Contributions would exceed the limit specified in Code section 402(g) for the
calendar year in which such Elective Contributions were made.
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Income allocable to excess Elective Contributions
shall be determined (1) under any reasonable method used for allocating Income
to all Participants' Accounts as applied consistently to all Participants for
the Plan Year or (2) by multiplying Income allocable to the Participant's
Account for the calendar year by a fraction, the numerator of which is such
Participant's excess Elective Contributions for the year and the denominator is
the Participant's Account balance attributable to Elective Contributions as of
the beginning of the calendar year plus the Participant's Elective Contributions
for the calendar year.
3.3 Rollovers from Other Employee Benefit Plans. The Plan does
not permit employees who participated in another retirement plan and trust,
"qualified" pursuant to Code sections 401(a) and 501(a), to deposit any such
funds into the Trust Fund.
3.4 Participant After-Tax Contributions. The Plan neither
requires nor permits Participants to make after-tax contributions to it or the
Trust Fund.
3.5 Determination of Contributions. The Employer shall
determine the amount of any contribution made by it pursuant to this Plan. The
Employer's determination of such contribution shall bind all Participants, the
Trustee and the Administrator. Such determination shall be final and conclusive
and shall not be subject to change as a result of a subsequent audit by the
Internal Revenue Service or as a result of any subsequent adjustment of the
Employer's records.
The Trustee shall have no right or duty to inquire into
the amount of the Employer's contribution or the method used in determining the
amount of such contribution. The Trustee shall be accountable for only funds it
actually receives.
3.6 Time of Payment of Contributions. The Employer shall pay
any contributions for each of its fiscal years to the Trustee within the time
prescribed by law, including extensions, for the filing of the Employer's
federal income tax return for such year or within such other period as provided
in Code section 404(a)(6). The Employer shall pay Elective Contributions made
pursuant to section 3.2 to the Trustee as of the earliest date the Employer can
reasonably segregate such contributions from its general assets but not later
than the 15th day of the month immediately following the month in which such
amounts would otherwise have been payable to the Participant.
3.7 Return of Contributions. The Trustee shall return
contributions made to the Plan in the following circumstances:
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(a) The Employer and the Plan hereby condition any
Employer contributions to the Plan upon the Employer obtaining a deduction
pursuant to Code section 404(a) in an equal amount for the Employer's taxable
year ending with or within the Plan Year for which the contribution is made. If
all or any portion of the Employer's contribution is not deductible for such
year pursuant to Code section 404(a), the Trustee shall return the nondeductible
amount to the Employer, without earnings, but reduced by any losses attributable
thereto, within one year of the disallowance of the deduction by the Internal
Revenue Service.
(b) The Trustee, at the direction of the Employer, shall
return to the Employer, without earnings, but reduced by any losses attributable
thereto, any contribution made due to a mistake of fact provided the
Administrator determines that such mistake existed at the time of the
contribution. The Trustee may only return a contribution pursuant to this
subsection (b) within 12 months of the date the contribution was made.
(c) The Employer and the Plan condition any Employer
contributions to this Plan upon the initial qualification of the Plan pursuant
to Code section 401(a). Within one year after the date the Internal Revenue
Service determines that the Plan fails to qualify pursuant to Code section
401(a), and provided that the Plan's application for determination to the
Internal Revenue Service is made within the time prescribed by law, the Trustee
shall return to the Employer the entire assets of the Plan attributable to all
amounts contributed during the time the Plan failed to qualify.
The Employer shall return Elective Contributions made
pursuant to section 3.2, and Income thereon, to the Participant if such
contributions are returned to the Employer pursuant to this section.
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ARTICLE 4
Valuation
4.1 Allocation of Income to Accounts. The Administrator shall
value a Participant's Account as of each Valuation Date in accordance with the
income accounting applicable to each investment fund in which the assets of the
Account are invested and adjust the Account to reflect applicable expenses and
all other transactions since the preceding Valuation Date.
4.2 Valuation of Participant's Account. The Administrator
shall determine the value of a Participant's Account for purposes of Article 7
as of the Valuation Date immediately preceding the date the distribution occurs
or commences as if such Valuation Date were the last day of a Plan Year,
including in that valuation (a) the allocation of contributions, if any, for
such year if the Account otherwise qualifies for such allocation and the
Valuation Date is actually the last day of a Plan Year or if the Plan otherwise
requires allocation of such amounts as of such Valuation Date, and (b) Elective
Contributions made pursuant to section 3.2 on behalf of the Participant since
the Valuation Date.
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ARTICLE 5
Contribution and Allocation Restrictions
5.1 Maximum Limits on Allocations. This section 5.1 shall
limit contributions and allocations made pursuant to Article 3.
(a) The annual addition to a Participant's Account for any
limitation year shall not exceed the lesser of:
(1) $30,000; or
(2) 25% of the compensation (as defined in section
5.1(c) below) paid or made available to the Participant in such year.
(b) "Annual addition" shall mean the sum allocated to a
Participant's Account for any year of contributions and amounts allocated to his
benefit pursuant to all other defined contribution plans maintained by the
Employer for the limitation year. Contributions allocated to any individual
accounts which are part of a pension or annuity plan under Code sections 415(l)
and 419A(d)(2) shall be treated as annual additions to a defined contribution
plan. However, section 5.1(a)(2) above shall not apply to any amounts treated as
an annual addition under the preceding sentence. Annual addition also includes
Elective Contributions pursuant to section 3.2 in excess of (1) the $7,000 limit
of Code section 402(g) (as adjusted annually for increases in the cost of living
as specified by the Secretary of the Treasury or his delegate) that are not
distributed by the April 15 following the close of the Plan Year, or (2) the
nondiscrimination tests recited in this Article 5 even if corrected through
distribution after the close of the Plan Year. Income attributable to a
Participant's Elective Contributions, which are distributed pursuant to section
5.1(e)(1) below, shall be included as an annual addition, unless also
distributed pursuant to section 5.1(e)(1) below.
The annual addition shall not include the allocation
to a Participant's Account of Income pursuant to Article 4.
(c) "Compensation" for purposes of this section 5.1,
unless otherwise elected by the Administrator for a limitation year, shall mean
an employee's wages from the Employer received during the limitation year which
is required to be reported on the employee's IRS Form W-2 for income tax
withholding purposes (or such other amount as required to be reported under Code
sections 6041(d), 6051(a)(3) and 6052 as referenced in Treasury regulation ss.
1.415-2(d)(11)(i)). Effective January 1, 1998, "compensation" for purposes of
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this section also shall include a Participant's elective contributions described
in section 1.2(e)(2) of this Plan.
(d) The "limitation year" shall be the Plan Year.
(e) The Administrator shall reallocate the excess of a
Participant's annual addition over the limits stated above, provided such excess
is not subject to refund or reversion pursuant to Article 3, in accordance with
subparagraph (1) below and any one of the other following subparagraphs:
(1) To the extent the excess arises from the
Participant's Elective Contributions made pursuant to section 3.2, such excess
and, if the Administrator determines, Income attributable to such Elective
Contributions, may be refunded to the Participant as soon as administratively
feasible.
(2) The excess amount shall be reallocated to the
Accounts of the Participants in the Plan who have not exceeded the limits stated
above. If the reallocation causes the limits stated above to be exceeded with
respect to each Participant for the limitation year, then these amounts shall be
held unallocated in a suspense account and reallocated to Participants' Accounts
in the next (or succeeding, if necessary) limitation year before the allocation
of Employer or employee contributions.
(3) The excess amount shall be used to reduce the
Employer contributions for the next (or succeeding, if necessary) limitation
year for the Participant who incurred the excess amounts provided the
Participant is covered by the Plan at the end of such limitation year. If the
Participant is no longer covered by the Plan as of the end of the limitation
year, the excess amounts shall be held unallocated in a suspense account and
reallocated in the next limitation year to all remaining Participants in the
Plan as a reduction of such Participants' Employer contributions. Excess amounts
may not be distributed to Participants or former Participants.
(4) The excess amount shall be held unallocated in a
suspense account for the limitation year and reallocated in the next (or
succeeding, if necessary) limitation year to all Participants in the Plan. The
excess amount must be used to reduce Employer contributions for the next (and
succeeding, if necessary) limitation years. Excess amounts may not be
distributed to Participants or former Participants.
Any excess amount held in a suspense account shall not
share in Income. If the Plan terminates before the allocation of such excess,
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the excess shall revert to the Employer, to the extent that it may not be
allocated to any Participant's Account.
5.2 Limitations for Defined Benefit and Defined Contribution
Plans Covering the Same Employee. This section 5.2 shall not apply to limitation
years beginning on or after January 1, 2000.
(a) Aggregate Limit. If an employee participates in both a
defined benefit plan and a defined contribution plan maintained by the Employer,
the sum of the defined benefit plan fraction and the defined contribution plan
fraction for each limitation year may not exceed 1.0. A Participant's annual
addition in excess of the aggregate limit shall first be reallocated from any
defined benefit plan maintained by the Employer.
(b) Defined Benefit Plan Fraction. For purposes of this
section, the defined benefit plan fraction for each limitation year shall
include a numerator equaling the projected annual benefit of the employee
pursuant to the plan (determined as of the close of the year) and a denominator
equaling the lesser of (1) 125% of the dollar limitation imposed upon such
benefits by the Code for such year or (2) 140% of his average annual
Compensation for the three consecutive Plan Years during which he both
participated in the Plan and received the highest Compensation from the
Employer.
(c) Defined Contribution Plan Fraction. For purposes of
this section, the defined contribution plan fraction for each limitation year
shall include a numerator equaling the sum of the annual additions to the
employee's account as of the close of the year and a denominator equaling the
sum of an amount determined for such year and for each prior year of service
with the Employer as the lesser of (1) 125% of the limit determined pursuant to
section 5.1(a)(1) or (2) 140% of the limit determined pursuant to section
5.1(a)(2).
5.3 Actual Deferral Percentage Test.
(a) Applying the Test. The actual deferral percentage (the
"ADP") for any Plan Year for Participants who are highly compensated employees
("HCEs") may not exceed the greater of:
(1) 1.25 times the ADP for the preceding Plan Year for
all Participants who are not HCEs; or
(2) The lesser of (A) 2 times the ADP for the
preceding Plan Year of Participants who are not HCEs or (B) the ADP for the
preceding Plan Year of Participants who are not HCEs plus 2 percentage points.
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Notwithstanding the foregoing, when applying the test
in section 5.3(a), the Employer may elect to use the ADP for the Plan Year for
which testing is performed for those Participants who are not HCEs; provided,
however, that any such election can be changed subsequently only as provided by
the Secretary of the Treasury. The Administrator shall determine the
Participants' deferral percentages consistent with Code section 401(k)(3) and
applicable Treasury Regulations, which the Plan incorporates by reference. The
Employer shall maintain records sufficient to demonstrate satisfaction of the
ADP test and the amount of qualified nonelective contributions or qualified
matching contributions, if any, used in such test.
(b) ADP Defined. For any Plan Year, the Administrator
shall determine the "ADP" for the Participants who are HCEs and all other
Participants as follows:
(1) The ADP for a group of Participants shall equal
the average of the ratios, calculated separately for each Participant in the
group, of (A) the allocations of Elective Contributions and qualified
nonelective contributions or qualified matching contributions (to the extent not
taken into account for purposes of the actual contribution percentage test), not
including Income, which the Administrator determines for a Plan Year to (B) the
Participant's Compensation for that Plan Year. The ADP of a Participant who
makes no Elective Contributions in a Plan Year is zero. Excess Elective
Contributions attributable to Participants who are not HCEs are not taken into
account for purposes of ADP testing.
(2) The "ADP" for any Participant who is an HCE and
eligible to have Elective Contributions allocated to his account pursuant to two
or more plans or arrangements described in Code section 401(k) and maintained by
an Employer shall be determined as if all such contributions were made pursuant
to a single arrangement.
(c) Excess Contributions. If, for any Plan Year, the
aggregate amount of contributions to the Accounts of Participants who are HCEs
exceeds the maximum amount permitted in paragraph (a) above, the Administrator
may distribute such excess amount plus or minus any Income or loss allocable to
such excess amount to some or all of the Participants who are HCEs (determined
by reducing contributions made on behalf of Participants who are HCEs in order
of the ADPs beginning with the highest amount of contributions by, or on behalf
of, such HCE) during the period beginning on the first day following the close
of the Plan Year in which the excess contributions arose and ending on the date
that is 2-1/2 months from the close of such Plan Year, and in all events shall
distribute such Amount no later than the close of the following Plan Year. The
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Administrator shall calculate any excess pursuant to this paragraph (c) after
determining the amount of excess Elective Contributions pursuant to Article 3.
Income allocable to excess contributions shall be
determined (1) under any reasonable method used for allocating Income to all
Participants' Accounts as applied consistently to all Participants for the Plan
Year or (2) by multiplying Income allocable to the Participant's Elective
Contributions (and qualified nonelective contributions and qualified matching
contributions, if any) for the Plan Year by a fraction, the numerator of which
equals the Participant's excess contributions for the year and the denominator
of which equals the Participant's Account balance attributable to Elective
Contributions (and qualified nonelective contributions and qualified matching
contributions, if any) as of the beginning of the Plan Year plus the
Participant's Elective Contributions (and qualified nonelective contributions
and qualified matching contributions, if any) for the Plan Year. The Plan may
distribute excess contributions (and Income) without regard to consent otherwise
required for Plan distributions.
5.4 Highly Compensated Employee. For purposes of this Article
5, highly compensated employee ("HCE") shall have the meaning required by Code
section 414(q) and applicable Treasury Regulations. For a Plan Year, an employee
is an HCE if the employee:
(a) was a five-percent owner at any time during the Plan
Year or the preceding Plan Year; or
(b) during the preceding Plan Year received Compensation
from the Employer exceeding $80,000 and, if the Employer elects, was in the
top-paid group of employees for the preceding Plan Year.
The top-paid group of employees shall be determined
without regard to employees described in Code section 414(q)(8).
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ARTICLE 6
Vesting
6.1 Vesting. A Participant's interest in his Account shall be
fully vested and nonforfeitable at all times.
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ARTICLE 7
Distributions
7.1 Commencement of Retirement Benefits. This section 7.1
shall not apply to distributions payable on account of a Participant's death.
(a) Earliest Payment Date. As to any Participant,
distribution shall occur no earlier than the termination of the Participant's
Employment, unless specifically authorized elsewhere in the Plan.
(b) Payment Due To Termination of Employment.
(1) Before Normal Retirement Age. If a Participant's
Employment terminates prior to his Normal Retirement Age, the distribution of
his Account shall commence as follows:
(A) Accounts of $5,000 or Less. The Administrator
shall mandate distribution in a single lump sum of any Participant's vested
Account that equals $5,000 or less prior to the commencement of distributions or
at the time of any prior distribution. If a Participant's vested Account equals
zero, the Participant shall be deemed to have received a mandatory distribution
of such vested Account. Mandatory distributions shall commence as soon as
administratively feasible following the third month after the termination of a
Participant's Employment.
(B) Accounts of More Than $5,000. Subject to the
requirements set forth below, the Administrator shall commence distribution of a
Participant's Account which exceeds $5,000 prior to the commencement of
distributions, or at the time of any prior distribution, as soon as
administratively feasible following the third month after the termination of a
Participant's Employment and the date the Participant elects in writing to
commence distribution. Such distribution may not commence prior to the
Participant's Normal Retirement Age unless the Participant consents, in writing,
on a form approved by and filed with the Administrator, to the earlier
distribution of his vested Account. Such Participant consent shall not be valid
unless the Administrator provides the Participant with notice of his right to
defer distribution no less than 30 days and no more than 90 days before the date
of distribution.
Notwithstanding the above, distribution may
commence less than 30 days after such notice is provided if (1) the notice
clearly informs the Participant that the Participant has a right to a period of
at least 30 days after receiving the notice to consider the decision of whether
or not to
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elect a distribution, and (2) the Participant, after receiving such notice,
affirmatively elects a distribution.
A Participant may elect to defer further the
distribution of his Account to a date no later than the April 1 following the
Participant's required beginning date as defined in section 7.4 below. Unless a
Participant elects to defer distribution, distribution shall commence no later
than the 60th day after the close of the Plan Year (1) in which the Participant
attains his Normal Retirement Age, or, if later, (2) in which occurs the 10th
anniversary of his commencement of participation in the Plan.
(2) On or After Normal Retirement Age. The
distribution of the Account of a Participant who terminates Employment on or
after the Participant's Normal Retirement Age shall commence as soon as
administratively feasible following the third month after the termination of a
Participant's Employment but no later than 60 days after the close of the Plan
Year in which the Participant's Employment terminates. A Participant may elect
to defer further the distribution of his Account to a date no later than the
April 1 following the calendar year in which he attains age 70-1/2 (or later
required beginning date as defined in section 7.4 below).
7.2 Method of Payment.
(a) Form of Benefits. Distribution from a Participant's
Account shall occur in a single lump sum.
(b) Direct Rollovers.
(1) General. Notwithstanding any provision of the Plan
to the contrary that would otherwise limit a distributee's election under this
section, a distributee may elect, at the time and in the manner prescribed by
the Administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct
rollover; provided, however, that if a Participant elects a direct rollover as
to only a portion of the Participant's distributable Account, the amount to be
paid in a direct rollover must equal at least $500.
(2) Eligible rollover distribution. An eligible
rollover distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover distribution
does not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated beneficiary,
or for a specified period of ten years or more; any distribution to the extent
such distribution is required under
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section 401(a)(9) of the Code; and the portion of any distribution that is not
includable in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(3) Eligible retirement plan. An eligible retirement
plan is an individual retirement account described in section 408(a) of the
Code, an individual retirement annuity described in section 408(b) of the Code,
an annuity plan described in section 403(a) of the Code, or a qualified trust
described in section 401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(4) Distributee. A distributee includes an employee or
former employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as defined in
section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
(5) Direct rollover. A direct rollover is a payment by
the Plan to the eligible retirement plan specified by the distributee.
(c) Mandatory Payments. The Administrator shall direct
distribution in a single lump sum of any Participant's vested Account that does
not exceed $5,000 prior to the commencement of distributions or at the time of
any prior distribution if such Participant fails to direct a rollover within 30
days after being notified of his right to direct a rollover.
7.3 Death Benefits.
(a) Distribution to a Beneficiary. The Plan shall
distribute the Account of a deceased Participant to the beneficiary identified
in the beneficiary designation in effect at the time of his death or, if no such
designation exists, to the Participant's surviving spouse or, if none, to his
estate. Each Participant may designate, in writing, on forms approved by and
filed with the Administrator, one or more beneficiaries to receive payment of
his Account and may, in addition, name a contingent beneficiary.
The beneficiary as to 100% of the Account of a Participant
married at the time of his death shall be his surviving spouse, unless his
spouse consents to the designation of an alternative beneficiary or the spouse
cannot be located. Spousal consent shall be in writing, acknowledging the effect
of such election and witnessed by a Plan representative or notary public. Any
change in, or revocation of, a Participant's designated beneficiary shall again
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require spousal consent unless the earlier consent of the spouse expressly
permitted subsequent designations by the Participant without further spousal
consent. The death benefit shall be made available to the beneficiary within a
reasonable time after the Participant's death and in no event later than the
earliest date benefits would be payable to the Participant if his Employment
terminated on the date of his death for a reason other than death.
(b) Form of Benefit. A Participant's beneficiary may
request, in writing, on forms approved by, and filed with, the Administrator,
payment in any optional benefit form available under the Plan.
(c) Death On or Before Required Beginning Date. The Plan
shall distribute as follows the Account of a Participant who dies on or before
his required beginning date, as defined in section 7.4 below:
(1) General. Distribution shall occur by the end of
the calendar year that contains the fifth anniversary of the Participant's
death.
(2) Spouse as Beneficiary. Distribution to the
surviving spouse of the Participant shall occur no later than the December 31 of
the calendar year in which the Participant would have attained age 70-1/2.
(d) Death After Required Beginning Date. If a Participant
dies on or after the date distributions have commenced following his required
beginning date pursuant to section 7.4, any remaining portion of his vested
Account shall be distributed at least as rapidly as required by the method of
distribution in effect on his date of death.
7.4 Required Lifetime Distributions. Notwithstanding the other
provisions of this Article 7, the Plan shall distribute each Participant's
Account consistent with Code section 401(a)(9) and applicable regulations, which
the Plan hereby incorporates by reference. Distribution of a Participant's
Account shall commence no later than his "required beginning date," determined
as follows:
(a) Required Beginning Date.
(1) Five Percent Owner. The required beginning date of
a Participant who is a 5-percent owner is the April 1 following the calendar
year in which the Participant attains age 70-1/2. For purposes of this section,
a Participant is a "5-percent owner," within the meaning of Code section 416(i),
if the Participant is a 5-percent owner at any time during the Plan Year ending
with or within the calendar year in which he attains age 66-1/2 or any
subsequent Plan Year. Once distributions for the Plan have begun to a 5-percent
owner, such distributions shall continue, even if the Participant ceases to be a
5-percent owner in a subsequent year.
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(2) All Other Employees. The required beginning date
of a Participant who is not a 5-percent owner is the April 1 following the later
of the calendar year in which (A) the Participant attains age 70-1/2 or (B) the
Participant terminates employment.
(b) Amount Required to be Distributed. The required
distribution paid each calendar year beginning with the first distribution
calendar year shall not equal less than the quotient obtained upon dividing the
Participant's Account by the lesser of (1) the applicable life expectancy, or
(2) if the beneficiary is not the Participant's spouse, the applicable minimum
distribution incidental benefit divisor determined from the table recited in
Q&A-4 of proposed regulation section 1.401(a)(9)-2. The "applicable life
expectancy" is the life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or designated beneficiary)
as of the Participant's (or designated beneficiary's) birthday in the first
distribution calendar year reduced by one in each year thereafter. The
Participant may elect to recalculate his life expectancy and/or that of his
spouse, provided such election is irrevocable and is made prior to the
Participant's required distribution date.
A Participant's Account is determined as of the last
Valuation Date in the calendar year immediately preceding the calendar year for
which a distribution is required, adjusted as follows: Increased by the amount
of any contributions allocated to the Account as of dates in such calendar year
after the Valuation Date and decreased by distributions made in such calendar
year after the Valuation Date.
7.5 Qualified Domestic Relations Orders. Upon receipt of a
domestic relations order issued by a court of competent jurisdiction with
respect to a Participant's interest in the Plan, the Administrator shall
determine whether such domestic relations order constitutes a qualified domestic
relations order (as defined in Code section 414(p)(1), a "QDRO"). The
Administrator shall establish reasonable procedures to determine the qualified
status of a domestic relations order and to administer distributions mandated by
a QDRO.
If the Administrator determines that the domestic
relations order is a QDRO, an alternate payee as defined in Code section
414(p)(8) may receive distributions in a single lump sum, or direct rollover if
the alternate payee is the Participant's former spouse, commencing as if the
Participant experienced a termination of Employment as of the date of the order
as described in section 7.1. Distributions made pursuant to this section may
occur without regard to the age or the employment status of the Participant.
Except as provided by this section, a distribution pursuant to a QDRO shall not
include any type of benefit or payment option not otherwise payable by the Plan.
If the Administrator has notice that a QDRO is being or may be sought but has
not received the QDRO, the
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Administrator shall not, unless requested in writing by the Participant, delay
payment of a benefit to a Participant which would otherwise be due. If the
Administrator has determined that an order is not a QDRO and all comment and
appeal periods have expired, the Administrator shall not, unless requested in
writing by the Participant, delay payment to a Participant which otherwise would
be due even if the Administrator has notice that the party claiming to be an
alternate payee or the Participant is attempting to correct any deficiencies in
the order.
7.6 Loans. Neither the Plan nor Trust Fund may extend any loan
to a Participant.
7.7 Hardship Withdrawals. A Participant may withdraw any
portion of his Account attributable to Elective Contributions upon appropriate
notice to the Administrator if the withdrawal results from a "hardship." A
withdrawal will be deemed to result from a "hardship" if the distribution:
(a) Is for the purpose of:
(1) The payment of medical expenses described in Code
section 213(d) incurred by the Participant, his spouse or dependents or
necessary for these persons to obtain medical care described in Code section
213(d);
(2) Costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the Participant;
(3) The payment of tuition, related educational fees,
and room and board expenses for the next 12 months of post-secondary education
for the Participant, his spouse or dependents;
(4) The need to prevent the eviction from, or mortgage
foreclosure of, the Participant's principal residence; or
(5) Any other purpose specified by the Internal
Revenue Service as a deemed immediate and heavy financial need.
(b) Satisfies all of the following:
(1) The distribution does not exceed the amount of the
financial need, including any amount necessary to pay taxes or penalties
reasonably anticipated to result from the distribution;
(2) The Participant has obtained all distributions
(other than hardship withdrawals) and all nontaxable loans currently available
pursuant to this Plan or any other plan maintained by the Employer;
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(3) The Participant cannot make Elective Contributions
and employee after-tax contributions pursuant to this Plan or any other
qualified or nonqualified plan of deferred compensation (excluding health or
welfare plans) maintained by the Employer for at least 12 months after receipt
of the withdrawn amount; and
(4) The Participant's Elective Contributions made in
the calendar year immediately following the calendar year in which the
withdrawal is received do not exceed the $7,000 limit of Code section 402(g) (as
adjusted) in effect for such calendar year, less the Participant's Elective
Contributions made in the calendar year in which the withdrawal was received.
7.8 Withdrawals On or After Age 59-1/2. On or after attaining
age 59-1/2, a Participant may withdraw all or any portion of his Account upon
written notice to the Administrator. A Participant shall be entitled to only one
election pursuant to this section in any Plan Year.
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ARTICLE 8
Administration of the Plan
8.1 Appointment of Separate Administrator. The Company may
appoint a separate Administrator. Any person, including, but not limited to,
employees of the Employer, shall be eligible to serve as Administrator. Two or
more persons may form a committee to serve as Administrator. Persons serving as
Administrator may resign by written notice to the Company and the Company may
appoint or remove such persons. An Administrator consisting of more than one
person shall act by a majority of its members at the time in office, either by
vote at a meeting or in writing without a meeting. An Administrator consisting
of more than one person may authorize any one or more of its members to execute
any document or documents on behalf of the Administrator, in which event the
Administrator shall notify the Trustee of the member or members so designated.
The Trustee shall accept and rely upon any document executed by such member or
members as representing action by the Administrator until the Administrator
shall file with the Trustee a written revocation of such designation. No person
serving as Administrator shall vote or decide upon any matter relating solely to
himself or solely to any of his rights or benefits pursuant to the Plan. If the
Company fails to name such person or persons, the Company shall be the
Administrator.
8.2 Powers and Duties. The Administrator shall administer the
Plan in accordance with its terms and shall discharge its duties with the care,
skill, prudence and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with like aims. The
Administrator shall have full and complete authority and control with respect to
Plan operations and administration unless the Administrator allocates and
delegates such authority or control pursuant to the procedures stated in
subsection (b) or (c) below. Any decisions of the Administrator or its delegate
shall be final and binding upon all persons dealing with the Plan or claiming
any benefit under the Plan. The Administrator shall have all powers which are
necessary to manage and control Plan operations and administration including,
but not limited to, the following:
(a) To employ such accountants, counsel or other persons
as it deems necessary or desirable in connection with Plan administration. The
Trust Fund shall bear the costs of such services and other administrative
expenses, unless paid by the Company or Employer.
(b) To designate in writing persons other than the
Administrator to perform any of its powers and duties hereunder including, but
not
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limited to, Plan fiduciary responsibilities (other than any responsibility to
manage or control the Plan assets).
(c) To allocate in writing any of its powers and duties
hereunder, including but not limited to fiduciary responsibilities (other than
any responsibility to manage or control the plan assets) to those persons who
have been designated to perform Plan fiduciary responsibilities.
(d) To construe and interpret the Plan in a discretionary
manner, including the power to construe disputed provisions.
(e) Subject to Article 10, to resolve all questions
arising in the administration, interpretation and application of the Plan,
including, but not limited to, questions as to the eligibility or the right of
any person to a benefit.
(f) To adopt such by-laws, rules, regulations, forms and
procedures from time to time as it deems advisable and appropriate in the proper
administration of the Plan.
(g) To receive from the Company or from Participants such
information as shall be necessary for the proper administration of the Plan.
(h) To furnish, upon request, such annual reports with
respect to the administration of the Plan as are reasonable and appropriate.
(i) To receive from the Trustee and review reports of the
financial condition and receipts and disbursements of the Trust Fund.
(j) To prescribe procedures to be followed by any person
in applying for distributions pursuant to the Plan and to designate the forms or
documents, evidence and such other information as the Administrator may
reasonably deem necessary, desirable or convenient to support an application for
such distribution.
(k) To issue directions to the Trustee, and thereby bind
the Trustee, concerning all benefits to be paid pursuant to the Plan.
(l) To apply consistently and uniformly the Committee
rules, regulations and determinations to all Participants and beneficiaries in
similar circumstances.
8.3 Records and Notices. The Administrator shall keep a record
of all its proceedings and acts and shall maintain all such books of accounts,
records and other data as may be necessary for proper plan administration. The
Administrator shall notify the Trustee of any action taken by the Administrator
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which affects the Trustee's Plan obligations or rights and, when required, shall
notify any other interested parties.
8.4 Compensation and Expenses. The expenses incurred by the
Administrator in the proper administration of the Plan shall be paid from the
Trust Fund. The Employer may elect to pay such expenses directly. An
Administrator who is an employee of the Employer shall not receive any fee or
compensation for services rendered.
8.5 Limitation of Authority. The Administrator shall not add
to, subtract from or modify any of the terms of the Plan, change or add to any
benefits prescribed by the Plan, or waive or fail to apply any Plan requirement
for benefit eligibility.
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9-2
ARTICLE 9
Administration of the Trust
9.1 Appointment of Trustee. The Company shall appoint one or
more Trustees to receive and hold in trust all contributions, and Income, paid
into the Trust Fund. The Company may remove the Trustee or the Trustee may
resign and a successor trustee shall be appointed all pursuant to the
requirements and procedure recited in the Trust Agreement.
9.2 Authorization for Trust Agreement. The Company shall enter
into an agreement with the Trustee to provide for the administration of the
Trust Fund. In accordance with the provisions of the agreement, the Company
shall have the right at any time, and from time to time, to amend the agreement.
9.3 Participant Direction of Investment of Account.
(a) Investment of Funds. The Company, upon written request
of a Participant and in accordance with its uniform and nondiscriminatory rules,
may authorize Participants to direct the investment of all or part of their
Account in such funds as the Company may select. The Participants' directions
shall bind the Trustee unless and until the Company amends or revokes the
authorization for investment direction by Participants. If the Trustee acts at
the direction of a Participant, the Employer, its board of directors, officers
and employees, the Administrator and the Trustee shall not be liable or
responsible for any loss resulting to the Trust Fund or to any Account or for
any breach of fiduciary responsibility by reason of any act done pursuant to the
direction of the Participant.
(b) Investment Elections.
(1) Participants may choose to invest their Account
among the available investment vehicles in any whole percentage. Elections shall
be made in a manner prescribed by the Administrator and verified in writing or
as otherwise approved by the Administrator. Once filed, a Participant's verified
election will remain in effect until amended or discontinued pursuant to this
paragraph. If a Participant fails to direct the investment of all or any portion
of his Account, such amount shall be invested in the fund(s) uniformly
designated by the Administrator on behalf of the Participant.
(2) A Participant may change his investment election
as to further contributions and Income therein pursuant to rules prescribed
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by the Administrator. A Participant may change his investment election as to his
existing Account pursuant to rules prescribed by the Administrator.
9.4 Funding Policy. The funding policy for the Plan hereby
requires the Trustee to invest the Trust Fund for the exclusive benefit of Plan
Participants and their beneficiaries in a manner consistent with the Employee
Retirement Income Security Act of 1974, as amended from time to time. As part of
such funding policy, the Company shall from time to time direct the Trustee, or
an investment manager as permitted by the Trust, to exercise its investment
discretion so as to provide sufficient cash assets in an amount determined under
the funding policy in effect to be necessary to meet the liquidity requirements
for administration of the Plan.
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<PAGE>
ARTICLE 10
Claims Procedure
10.1 Application for Benefits. Any person entitled to benefits
must file a written claim with the Administrator on forms provided by the
Administrator. Such application shall include all information and evidence the
Administrator deems necessary to properly evaluate the merit of and to make any
necessary determinations on a claim for benefits. Unless special circumstances
exist, a Participant shall be informed of the decision on his claim within 90
days of the date all the information and evidence necessary to process the claim
is received. Within such 90-day period, he shall receive a notice of the
decision or a notice that explains the special circumstances requiring a delay
in the decision and sets a date, no later than 180 days after all the
information and evidence necessary to process his claim have been received, by
which he can expect to receive a decision.
The claimant may assume that the claim has been denied and
may proceed to appeal the denial if the claimant does not receive any notice
from the Administrator within the 90-day period, or a notice of a delayed
decision within such 90 day period.
10.2 Notice of Denied Claim for Benefits. If a claim for
benefits is partially or wholly denied, the claimant will receive a notice that:
states the specific reason or reasons for denial; refers to provisions of the
Plan documents on which the denial is based; describes and explains the need for
any additional material or information that the claimant must supply in order to
make his claim valid; and explains the steps that must be taken to submit his
claim for review.
10.3 Review of Denied Claim. A claimant may file a written
appeal of a denied claim with the Administrator within 60 days after receiving
notice that his claim has been denied, including any comments, statements or
documents he may wish to provide. The claimant may review all pertinent Plan
documents upon reasonable request to the Administrator. Within 60 days after the
submission of the written appeal, the Administrator shall render a determination
on the appeal of the claim in a written statement. The written decision shall
contain the reason or reasons for the decision and refer to specific Plan
provisions on which the decision is based. If special circumstances require a
delay in the decision, the Administrator shall notify the claimant of the
reasons for the delay within the 60-day period. A delayed decision shall be
issued no later than 120 days after the date the Administrator receives a
request for review. The determination rendered by the Administrator shall be
binding upon all parties.
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ARTICLE 11
Amendment and Termination
11.1 Amendment or Restatement. The Company may amend or
restate the Plan at any time and from time to time. No amendment or restatement
shall authorize any part of the Trust Fund, other than amounts which are
necessary to pay taxes and administration expenses, to be used for or diverted
to purposes other than for the exclusive benefit of the Participants or their
beneficiaries or estates. No amendment or restatement shall be construed to: (a)
reduce a Participant's Account balance determined as of the date immediately
preceding the effective date of the amendment or restatement; (b) reduce or
eliminate any benefit protected by Code section 411(d)(6); or (c) cause or
permit any portion of the Trust Fund to revert to, or become property of, the
Company. No amendment which affects the rights, duties or responsibilities of
the Trustee shall be effective without the Trustee's written consent. The
provisions of the Plan as in effect at the time of a Participant's termination
of Employment shall control as to that Participant, unless otherwise specified
in the Plan. If the Company amends the Plan to no longer reflect the provisions
of the volume submitter master document, the Plan may be considered an
individually designed plan.
11.2 Termination and Discontinuance of Contributions. The
Company reserves the right to terminate the Plan at any time with respect to any
or all Participants. Any participating Employer shall be permitted to
discontinue or revoke its participation in the Plan. Upon discontinuance of Plan
contributions or full or partial termination of the Plan, the Account of each
affected Participant shall become fully vested and nonforfeitable. The Company
shall provide the Trustee with written notification of the full or partial
termination of the Plan. In the event of full or partial termination, the
Employer's liability to pay plan benefits shall be strictly limited to assets of
the Trust Fund. No one shall have any claim against the Company to provide any
or all of the plan benefits regardless of the sufficiency of the Trust Fund,
except as otherwise required by law. The termination of the Plan shall not
result in the reduction of any benefit protected by Code section 411(d)(6),
except to the extent permitted by applicable Treasury regulations.
11.3 Distribution Upon Termination. If the Plan terminates
pursuant to section 11.2, and the Company does not merge the assets of the Plan
with another qualified plan or continue the Plan as a "wasting trust" by
satisfying all ongoing plan qualification rules, the Company shall distribute
each Participant's Account in a lump sum; provided, however, if the Employer (or
any member of a controlled group within the meaning of Code sections 414(b),
(c), (m) and (o) of
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which the Employer is a member) establishes or maintains at any time within the
24-month period beginning 12 months before the time of termination another
defined contribution plan, other than an employee stock ownership plan or
simplified employee pension (as defined in Code section 408(k)) which covers 2%
or more of the employees covered under the Plan at the time of termination, each
Participant's Account shall be transferred to such other defined contribution
plan. Participant consent to such a transfer shall be required only if transfer
of the Participant's Account results in an elimination or reduction of Code
section 411(d)(6) protected benefits. Participant consent shall not be required
if Participants' Accounts are to be paid in a lump sum.
11.4 Merger, Consolidation or Transfer of Assets and
Liabilities. Upon any merger or consolidation with, or a transfer of assets or
liabilities to, another plan, each Participant is entitled to receive a benefit
immediately after such event which is equal to or greater than the benefit he
would have been entitled to receive if the Plan had terminated immediately prior
to such event. Any such transfer, merger or consolidation must not otherwise
result in the elimination of any benefit protected by Code section 411(d)(6).
11.5 Distribution Upon Disposition of Assets of Subsidiary.
Notwithstanding the distribution rules of Article 7, a Participant's Account may
be distributed in a lump sum in the event of the disposition of at least 85% of
the assets of the Employer (within the meaning of Code section 409(d)(2)), or,
if the Employer is a subsidiary of the Company, the disposition by the Company
of its interests in the Employer (within the meaning of Code section 409(d)(3))
to an unrelated entity provided (1) the Company or Employer continues to
maintain the Plan, and (2) the Participant continues employment with the
corporation acquiring such assets or such subsidiary.
11.6 Successor Employer. Any successor to the business of the
Employer may, with the written consent of the Company, continue the Plan and
Trust. Such successor shall succeed to all the rights, powers and duties of the
Employer. The Employment of any employee of the Employer who continues in the
employ of the successor shall not be deemed to have been terminated or severed
for any purpose of the Plan.
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<PAGE>
ARTICLE 12
General Provisions
12.1 Limitation on Liability. In no event shall the Company,
Employer, Administrator or any employee, officer or director of the Company or
Employer incur any liability for any act or failure to act unless such act or
failure to act constitutes a lack of good faith, willful misconduct or gross
negligence with respect to the Plan or Trust Fund.
12.2 Indemnification. The Trust Fund shall indemnify the
Administrator and any employee, officer or director of the Employer against all
liabilities arising by reason of any act or failure to act unless such act or
failure to act is due to such person's own gross negligence or willful
misconduct or lack of good faith in the performance of his duties to the Plan or
Trust Fund. Such indemnification shall include, but not be limited to, expenses
reasonably incurred in the defense of any claim, including attorney and legal
fees, and amounts paid in any settlement or compromise; provided, however, that
indemnification shall not occur to the extent that it is not permitted by
applicable law. If Trust Fund assets are insufficient or indemnification is not
permitted by applicable law, the Employer shall indemnify such person.
Indemnification shall not be deemed the exclusive remedy of any person entitled
to indemnification pursuant to this section. The indemnification provided
hereunder shall continue as to a person who has ceased acting as a director,
officer, member, agent or employee of the Administrator or as an officer,
director or employee of the Employer, and such person's rights shall inure to
the benefit of his heirs and representatives.
12.3 Compliance with Employee Retirement Income Security Act
of 1974. Notwithstanding any other provisions of this Plan, a fiduciary or other
person shall not be relieved of any responsibility or liability for any
responsibility, obligation or duty imposed upon such person pursuant to the
Employee Retirement Income Security Act of 1974, as amended from time to time.
12.4 Nonalienation of Benefits. Except with respect to any
indebtedness owing to the Trust Fund, payments required pursuant to a qualified
domestic relations order as defined by the Code, or as otherwise permitted by
law, benefits payable by the Plan shall not be subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution or levy, either voluntary or involuntary. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of any right to Plan benefits shall be void.
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<PAGE>
12.5 Employment Not Guaranteed by Plan. The establishment of
this Plan, its amendments and the granting of a benefit pursuant to the Plan
shall not give any Participant the right to continued Employment with the
Employer, or limit the right of the Employer to dismiss or impose penalties upon
the Participant or modify the terms of Employment of any Participant.
12.6 Form of Communication. Any election, application, claim,
notice or other communication required or permitted to be made by or to a
Participant, the Administrator or Company shall be made in such form as the
Administrator or Company shall prescribe. A communication shall be effective
upon mailing if sent first class, postage prepaid and addressed to the
Administrator or Company at the principal office of the Administrator or Company
or to the Participant at his last known address.
12.7 Facility of Payment. If a Participant's duly qualified
guardian or legal representative makes claim for any amount owing to the
Participant, the Trustee shall pay the amount to which the Participant is
entitled to such guardian or legal representative. In the event a distribution
is to be made to a minor, the Administrator may direct that such distribution be
paid to the legal guardian, or if none, to a parent of such minor or an adult
with whom the beneficiary maintains his residence, or to the custodian for such
beneficiary under the Uniform Gift to Minors Act if permitted by the laws of the
state in which the beneficiary resides. Any payment made pursuant to this
section in good faith shall be a payment for the Account of the Participant and
shall be a complete discharge from any liability of the Fund or the Trustee.
12.8 Location of Participant or Beneficiary Unknown. In the
event a Participant or beneficiary cannot be located upon termination of the
Plan, any amount payable to such Participant or beneficiary shall be transferred
at the earliest possible date to the state of the Participant's or beneficiary's
last known address pursuant to the terms of that State's abandoned property law
or as otherwise required by applicable law. Upon such transfer, the Employer,
Administrator and Trustee shall have no further liability for the amount so
transferred.
12.9 Service in More Than One Fiduciary Capacity. Any
individual, entity or group of persons may serve in more than one fiduciary
capacity with respect to the Plan and Trust Fund.
12.10 Offset. In the event any payment is made by the Trustee
to any individual who is not entitled to such payment, the Trustee shall have
the right to reduce future payments due to such individual by the amount of any
such
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erroneous payment. This right of offset, however, shall not limit the rights of
the Trustee to recover such overpayments in any other manner.
12.11 Military Leave of Absence. Notwithstanding any provision
of this Plan to the contrary, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with
section 414(u) of the Code.
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APPENDIX A
MADISON UAW - LOCAL UNION 1329
To the extent any provisions of the Plan are contrary to the provisions
of this Appendix A, the provisions of Appendix A shall control with respect to
any Participant who is a member of the eligible class of employees named in
Appendix A.
1. Eligible Class of Employees. An employee eligible to
participate in the Plan is any employee of an Employer who is a member of the
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, Local Union 1329, a collective bargaining unit whose
representatives have agreed with the Employer to provide for participation in
the Plan for members of the collective bargaining unit.
<PAGE>
APPENDIX B
MADISON - INTERNATIONAL ASSOCIATION OF MACHINISTS,
BADGER LODGE NO. 1406
To the extent any provisions of the Plan are contrary to the provisions
of this Appendix B, the provisions of Appendix B shall control with respect to
any Participant who is a member of the eligible class of employees named in
Appendix B.
1. Eligible Class of Employees. An employee eligible to
participate in the Plan is any employee of an Employer who is a member of the
International Association of Machinists, Badger Lodge No. 1406, a collective
bargaining unit whose representatives have agreed with the Employer to provide
for participation in the Plan for members of the collective bargaining unit.
2. Compensation. With respect to any Participant covered under
this Appendix B, Compensation shall be determined in accordance with section
1.2(e)(1) of the Plan, excluding incentive pay.
<PAGE>
APPENDIX C
FENNIMORE - TEAMSTERS, LOCAL UNION 695
To the extent any provisions of the Plan are contrary to the provisions
of this Appendix C, the provisions of Appendix C shall control with respect to
any Participant who is a member of the eligible class of employees named in
Appendix C.
1. Eligible Class of Employees. An employee eligible to
participate in the Plan is any employee of an Employer who is a member of the
Teamsters, Local Union 695, a collective bargaining unit whose representatives
have agreed with the Employer to provide for participation in the Plan for
members of the collective bargaining unit.
2. Compensation. With respect to any Participant covered under
this Appendix C, Compensation shall be determined in accordance with section
1.2(e)(1) of the Plan, excluding incentive pay.
CONSENT OF INDEPENDENT ACCOUNTANTS
Exhibit 23.2
We consent to the incorporation by reference in this
registration statement of Rayovac Corporation on Form S-8 of our report dated
November 22, 1996 on our audits of the consolidated financial statements of
Rayovac Corporation as of September 30, 1996 and June 30, 1996 and for the
period July 1, 1996 to September 30, 1996 and each of the two years in the
period ended June 30, 1996 appearing in the registration statement on Form S-1
(File No. 333-35181) of Rayovac Corporation as filed with the Securities and
Exchange Commission.
/s/ Coopers & Lybrand LLP
Milwaukee, Wisconsin
December 8, 1997
