REGISTRATION NO. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933, AS AMENDED
ENERGIZER HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Missouri 43-1863181
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 Chouteau, St. Louis, MO 63102
(Address of principal executive offices) (Zip Code)
ENERGIZER HOLDINGS, INC.
DEFERRED COMPENSATION PLAN
(Full title of the plan)
Harry L. Strachan, Esq.
Vice President and General Counsel
ENERGIZER HOLDINGS, INC.
800 Chouteau
St. Louis, Missouri 63102
(NAME AND ADDRESS OF AGENT FOR SERVICE)
Telephone Number of agent for service: (314) 982-2970
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CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
PROPOSED PROPOSED MAXIMUM
AMOUNT TO MAXIMUM AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES BE OFFERING PRICE PER PRICE (1) REGISTRATION
TO BE REGISTERED REGISTERED SHARE(1) FEE
Stock Units Equivalent to
Energizer Holdings, Inc.
Common Stock 500,000
.01 par value units $ 23.71875 $ 11,859,375 $ 3,130.87
========================== ========== ==================== ==================== =============
<FN>
(1) The proposed maximum aggregate offering price has been estimated solely for purpose of
computing the Registration Fee pursuant to the provisions of Rule 457(c) and (h)(1) and is based
upon a price of $23.71875 per share, being the average of the high and low transaction prices of
the Company's Common Stock per share as reported on the New York Stock Exchange on March 28,
2000.
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ENERGIZER HOLDINGS, INC.
DEFERRED COMPENSATION PLAN
Item 3. Incorporation of Documents by Reference.
-------------------------------------------
The following documents filed with the Commission by Energizer Holdings, Inc.
(the "Company") are incorporated herein by reference:
(i) Registration Statement on Form 10 under the Securities Exchange Act of
1934, as amended (the "1934 Act"), filed on October 15, 1999, as amended on
January 11, 2000, February 23, 2000 and March 16, 2000 (the "Form 10
Registration Statement"); and
(ii) The description of the shares of common stock, par value $.01 per
share, of the Company, including the Rights related to the shares, as set forth
in the Rights Agreement, dated as of March 16, 2000 between the Company and
Continental Stock Transfer & Trust Company, as Rights Agent, contained in the
Company's Form 10 Registration Statement, including any amendments or reports
filed for the purpose of updating such information filed with the Securities and
Exchange Commission (File No. 1-15401) by the Company, is incorporated by
reference.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 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 in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statements contained herein or in
a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
Item 6. Indemnification of Directors and Officers.
---------------------------------------------
Under the terms of Section 351.355 of the Missouri General and Business
Corporation Law ("GBCL") and the Company's Articles of Incorporation, the
Company must indemnify any person who is or was a director, officer or employee
of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any and all expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement, actually and
reasonably incurred by him in connection with any civil, criminal,
administrative or investigative action, proceeding or claim (including an action
by or in the right of the Company) by reason of the fact that he is or was
serving in such capacity, provided that such person's conduct is not finally
adjudged to have been knowingly fraudulent, deliberately dishonest or willful
misconduct. As permitted by the Company's Articles, the Company has entered
into contracts with each of its directors and corporate officers guaranteeing
the indemnification provisions stated in the Articles and providing for
advancement to such individuals of legal fees and other expenses necessary in
defending against such actions, proceedings or claims.
The Company has directors' and officers' insurance which protects each
director or officer from liability for actions taken in their capacity as
directors or officers. This insurance may provide broader coverage for such
individuals in certain situations than may be required by the provisions of
Section 351.355 or the Company's Articles of Incorporation.
The foregoing represents a summary of the general effect of Missouri law
and the Company's Articles of Incorporation for purposes of general description
only. Additional information regarding indemnification of directors and
officers can be found in Section 351.355 of the GBCL, the Company's Articles of
Incorporation and its pertinent insurance contracts.
Item 8. Exhibits.
--------
See the Exhibit Index located at page 6 hereof.
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information in the registration statement;
(iii) to include any material information with respect to the
plan or distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That for the purpose 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Company'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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted with respect to directors, officers or
persons controlling the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933, and is therefore unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
<PAGE>
SIGNATURES
The Registrant. 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 St. Louis, Missouri, as of the 30th day of
March, 2000.
ENERGIZER HOLDINGS, INC.
By: /s/ J. Patrick Mulcahy
--------------------------
J. Patrick Mulcahy
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Harry L. Strachan, Timothy L. Grosch and Daniel
E. Corbin, Jr., and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for and in his
or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments), and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, 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 or she might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact and
agents or any of them, or their or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities described as of March 30, 2000.
SIGNATURE TITLE
- --------- -----
/s/ J. Patrick Mulcahy Chief Executive Officer
- -------------------------
J. Patrick Mulcahy
/s/ Daniel E. Corbin, Jr. Executive Vice President
- ----------------------------- Finance and Control
Daniel E. Corbin, Jr.
/s/ Mark Schafale Controller
- -------------------
Mark Schafale
/s/ William P. Stiritz Chairman of the Board
- -------------------------
William P. Stiritz
/s/ William H. Danforth Director
- --------------------------
Dr. William H. Danforth
/s/ F. Sheridan Garrison Director
- ---------------------------
F. Sheridan Garrison
/s/ R. David Hoover Director
- ----------------------
R. David Hoover
/s/ Joe R. Micheletto Director
- ------------------------
Joe R. Micheletto
/s/ Robert A. Pruzan Director
- -----------------------
Robert A. Pruzan
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
Exhibit 4.1 Energizer Holdings, Inc. Deferred Compensation Plan
Exhibit 5 Opinion of Thompson Coburn LLP
Exhibit 23 Consent of Independent Certified Public Accountants
ENERGIZER HOLDINGS, INC.
------------------------
DEFERRED COMPENSATION PLAN
--------------------------
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TABLE OF CONTENTS
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ARTICLE PAGE
- --------- ----
ARTICLE I
INTRODUCTION 1
1.1 NAME OF PLAN/PURPOSE. 1
1.2 "TOP HAT" RETIREMENT BENEFIT PLAN. 1
1.3 EFFECTIVE DATE. 1
1.4 ADMINISTRATION. 1
1.5 APPENDICES. 1
ARTICLE II
DEFINITIONS AND CONSTRUCTION 1
2.1 DEFINITIONS. 1
2.2 NUMBER AND GENDER. 6
2.3 HEADINGS. 6
ARTICLE III
PARTICIPATION AND ELIGIBILITY 7
3.1 ELIGIBILITY. 7
3.2 PARTICIPATION. 7
3.3 DURATION OF PARTICIPATION. 7
ARTICLE IV
DEFERRAL AND MATCHING CONTRIBUTIONS 8
4.1 DEFERRALS BY PARTICIPANTS. 8
4.2 EFFECTIVE DATE OF DEFERRED COMPENSATION AGREEMENT. 8
4.3 MODIFICATION OR REVOCATION OF ELECTION OF PARTICIPANT. 8
4.4 MATCHING CONTRIBUTIONS. 8
4.5 MANDATED DEFERRALS. 9
ARTICLE V
VESTING 10
5.1 VESTING IN BASE SALARY DEFERRALS, BONUS DEFERRALS,
DIRECTOR FEE DEFERRALS AND RALSTON PLAN ACCOUNT. 10
5.2 VESTING IN MATCHING CONTRIBUTIONS. 10
5.3 DEFERRAL PERIODS. 10
ARTICLE VI
ACCOUNTS 11
6.1 ESTABLISHMENT OF BOOKKEEPING ACCOUNTS. 11
6.2 SUBACCOUNTS. 11
6.3 INVESTMENT OF ACCOUNTS. 11
6.4 HYPOTHETICAL NATURE OF ACCOUNTS. 12
ARTICLE VII
PAYMENT OF ACCOUNT 13
7.1 TIMING OF DISTRIBUTION OF BENEFITS. 13
7.2 ADJUSTMENT FOR INVESTMENT GAINS AND LOSSES
UPON A DISTRIBUTION. 13
7.3 FORM OF PAYMENT OR PAYMENTS. 13
7.4 DEATH BENEFITS 14
7.5 DESIGNATION OF BENEFICIARIES. 14
7.6 UNCLAIMED BENEFITS. 14
7.7 WITHDRAWAL. 15
ARTICLE VIII
ADMINISTRATION 16
ARTICLE IX
AMENDMENT AND TERMINATION 17
ARTICLE X
GENERAL PROVISIONS 18
10.1 NON-ALIENATION OF BENEFITS. 18
10.2 CONTRACTUAL RIGHT TO BENEFITS FUNDING. 18
10.3 INDEMNIFICATION AND EXCULPATION. 18
10.4 NO EMPLOYMENT AGREEMENT. 18
10.5 CLAIMS FOR BENEFITS. 19
10.6 SUCCESSOR TO COMPANY. 19
10.7 SEVERABILITY. 19
10.8 TRANSFER AMONG AFFILIATES. 19
10.9 ENTIRE PLAN. 20
10.10 PAYEE NOT COMPETENT. 20
10.11 TAX WITHHOLDING. 20
10.12 GOVERNING LAW. 20
</TABLE>
<PAGE>
ENERGIZER HOLDINGS, INC.
DEFERRED COMPENSATION PLAN
ARTICLE I
INTRODUCTION
1.1 NAME OF PLAN/PURPOSE.
ENERGIZER HOLDINGS, INC. ("Company") hereby establishes the ENERGIZER
HOLDINGS, INC. DEFERRED COMPENSATION PLAN ("Plan") which Plan is an unfunded
deferred compensation plan for the benefit of certain designated management or
highly compensated employees and Directors of the Company and its Subsidiaries.
This Plan is intended to provide, in part, certain eligible employees and
Directors of the Company and its Subsidiaries the opportunity to defer elements
of their compensation or fees and to receive the benefit of additions to their
deferrals.
1.2 "TOP HAT" RETIREMENT BENEFIT PLAN.
The Plan is intended to be a nonqualified unfunded deferred
compensation plan. The Plan is maintained for Directors and for a select group
of management or highly compensated employees and, therefore, it is intended
that the Plan will be exempt from Parts 2, 3 and 4 of Title I of ERISA. The
Plan is not intended to qualify under Code Section 401(a).
1.3 EFFECTIVE DATE.
The Plan is effective as of April 1, 2000.
1.4 ADMINISTRATION.
The Plan shall be administered by the Committee described in Article
VIII.
1.5 APPENDICES.
The Plan may be amplified or modified from time to time by Appendices.
Each Appendix forms a part of the Plan and its provisions shall supersede Plan
provisions as necessary to eliminate any inconsistencies.
<PAGE>
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS.
For purposes of the Plan, the following words and phrases, whether or
not capitalized, shall have the respective meanings set forth below, unless the
context clearly requires a different meaning:
(a) "ACCOUNT" means the bookkeeping account maintained on behalf
of each Participant pursuant to Article VI that is credited with Base Salary
Deferrals, Bonus Deferrals, Matching Contributions, and Director Fee Deferrals
pursuant to Article IV and amounts credited to the Ralston Plan Account, and the
earnings and losses on such amounts as determined in accordance with Article VI.
(b) "ACQUIRING PERSON" means any person or group of Affiliates or
Associates who is or becomes the beneficial owner, directly or indirectly, of
shares representing 20% or more of the total votes of the outstanding stock
entitled to vote at a meeting of shareholders.
(c) "AFFILIATE" or "ASSOCIATE" shall have the meanings set forth
in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended.
(d) "BASE SALARY" means, with respect to an Employee, the annual
cash compensation relating to services performed during any calendar year,
whether or not actually paid in such calendar year or included on the Federal
Income Tax Form W-2 for such calendar year, excluding bonuses, commissions,
overtime, fringe benefits, stock options, relocation expenses, incentive
payments, non-monetary awards, and other fees, automobile and other allowances
paid to a Participant for employment services rendered (whether or not such
allowances are included in the Employee's gross income). Base Salary shall be
calculated before reduction for compensation voluntarily or mandatorily deferred
or contributed by the Participant pursuant to all qualified or non-qualified
plans of the Company and any Subsidiary and shall be calculated to include
amounts not otherwise included in the Participant's gross income under Code
Sections 125, 402(e)(3), 402(h) or 403(b) pursuant to plans established by the
Company; provided however, that all such amounts will be included in
compensation only to the extent that, had there been no such plan, the amount
would have been payable in cash to the Employee.
(e) "BASE SALARY DEFERRAL" means the amount of a Participant's
Base Salary that the Participant elects to have withheld on a pre-tax basis from
his Base Salary and credited to his Account pursuant to Section 4.1.
(f) "BENEFICIAL OWNER" shall mean a person who shall be deemed to
have acquired "beneficial ownership" of, or to "beneficially own," any
securities:
(i) which such person or any of such persons Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such person or any of such person's Affiliates or
Associates has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of currently exercisable
conversion or exchange rights, warrants or options, or otherwise; provided,
however, that a person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange offer
made by or on behalf of such person or any of such person's Affiliates or
Associates until such tendered securities are accepted for purchase or exchange;
or (b) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of such person's Affiliates or
Associates has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities) for the purpose of acquiring,
holding, voting or disposing of any securities of Company.
Notwithstanding anything in this definition of "Beneficial Owner" to
the contrary, the phrase "then outstanding," when used with reference to a
person's beneficial ownership of securities of Company, shall mean the number of
such securities then issued and outstanding together with the number of such
securities not then actually issued and outstanding which such person would be
deemed to own beneficially hereunder.
(g) "BENEFICIARY" means the person or entity designated by the
Participant to receive benefits which may be payable on or after the
Participant's death in accordance with Section 7.4.
(h) "BOARD" means the Board of Directors of the Company.
(i) "BONUS COMPENSATION" means the amount awarded to a Participant
for a Plan Year under any bonus plan maintained by the Company and/or a
Subsidiary which the Committee permits to be deferred under the Plan.
(j) "BONUS DEFERRAL" means the amount of a Participant's Bonus
Compensation that the Participant elects to have withheld on a pre-tax basis
from his Bonus Compensation and credited to his Account pursuant to Section 4.1.
(k) "CHANGE OF CONTROL" shall mean the time when (a) any Acquiring
Person, either individually or together with such person's Affiliates or
Associates, shall have become the Beneficial Owner, director or indirectly, of
more than 20% of the total votes of the outstanding stock of Energizer Holdings,
Inc.; (b) individuals who shall qualify as Continuing Directors shall have
ceased for any reason to constitute at least a majority of the Board; or (c) a
majority of the individuals who shall qualify as Continuing Directors shall
approve a declaration that a Change of Control has occurred.
(l) "CODE" means the Internal Revenue Code of 1986, as amended,
and all valid regulations thereunder.
(m) "COMMITTEE" means the Energizer Plans Administrative Committee
which administers the Plan in accordance with Article VIII.
(n) "COMPANY" means Energizer Holdings, Inc. and any successor
thereto.
(o) "CONTINUING DIRECTOR" means any member of the Board, while
such person is a member of such Board, who is not an Affiliate or Associate of
an Acquiring Person or of any such Acquiring Person's Affiliate or Associate and
was a member of such Board prior to the time when such Acquiring Person became
an Acquiring Person, and any successor of a Continuing Director, while such
successor is a member of such Board, who is not an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or a representative or nominee of
an Acquiring Person or of any Affiliate or Associate of such Acquiring Person
and is recommended or elected to succeed the Continuing Director by a majority
of the Continuing Directors.
(p) "DEFERRAL PERIOD" means the period of time for which a
Participant elects to defer receipt of Base Salary Deferrals and Bonus
Deferrals, credited to such Participant's Account for a Plan Year, and the
earnings thereon. A Participant's election of a Deferral Period made with
respect to such Base Salary Deferrals and Bonus Deferrals for a Plan Year shall
apply to Matching Contributions made by the Company with respect to such Bonus
Deferrals for such Plan Year.
(q) "DEFERRALS" means (i) with respect to a Participant who is an
Employee, Base Salary Deferrals and/or Bonus Deferrals, and (ii) with respect to
a Participant who is a Director, Director Fee Deferrals.
(r) "DEFERRED COMPENSATION AGREEMENT" means the written agreement
or electronic means by which a Participant elects the amount of Deferrals for a
Plan Year, the Deferral Period, the deemed investment and the form of payment
for the Deferrals and Matching Contributions, credited to such Participant's
Account for a Plan Year, and the earnings thereon. A Participant's election
with respect to the investment and form of payment of Salary Deferrals and Bonus
Deferrals shall apply to Matching Contributions made by the Company with respect
to such Bonus Deferrals for such Plan Year.
(s) "DIRECTOR" means any member of the Board or the board of
directors of a Subsidiary and who is not an officer or Employee of the Company
and/or a Subsidiary.
(t) "DIRECTOR FEE DEFERRALS" means the amount of Director Fees
which a Participant elects to have withheld on a pre-tax basis from his Director
Fees and credited to his Account pursuant to Section 4.1.
(u) "DIRECTOR FEES" means the amount of cash paid to a Director,
including but not limited to board of director fees, committee fees, annual
retainer director fees and such other amounts paid to a Director, for services
as a Director of the Company or a Subsidiary.
(v) "DISABILITY" means such physical or mental illness that
prevents the Participant from performing his regular duties for the Company
and/or Subsidiary, as determined by the Committee.
(w) "EFFECTIVE DATE" means April 1, 2000.
(x) "EMPLOYEE" means any common-law employee of the Company or a
Subsidiary.
(y) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(z) "MARKET VALUE" means the average of the closing stock price of
the Stock as reported by the New York Stock Exchange - Composite Transactions
during the ten (10) trading days immediately preceding the date in question, or,
if the Stock is not quoted on such composite tape or if such Stock is not listed
on such exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934, as amended, on which the Stock is
listed, or if the Stock is not listed on any such exchange, the average of the
closing bid quotations with respect to a share of the Stock during the ten (10)
days immediately preceding the date in question on the NASDAQ Stock Market
National Market System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a share of the Stock
as determined by a majority of the Continuing Directors in good faith.
(aa) "MATCHING CONTRIBUTION" means the amount of the contribution
made by the Company and/or a Subsidiary on behalf of a Participant who elects to
make Bonus Deferrals to the Plan for a Plan Year, subject to the provisions of
Section 4.4.
(bb) "PARTICIPANT" means each Employee who has been selected for
participation in the Plan and each Director who has become a Participant
pursuant to Article III.
(cc) "PLAN" means the ENERGIZER HOLDINGS, INC. DEFERRED
COMPENSATION PLAN, as amended from time to time.
(dd) "RALSTON PLAN" means the Ralston Purina Company Deferred
Compensation Plan for Key Employees.
(ee) "RALSTON PLAN ACCOUNT" means the amounts credited on behalf
of a Participant under the Ralston Plan as of March 31, 2000 (including amounts
attributable to services performed on or before March 31, 3000 and not paid
until after such date but that are subject to a deferral election pursuant to
the Ralston Plan).
(ff) "RETIREMENT" means (i) with respect to a Participant who is
an Employee, the date such Participant is entitled to a benefit (whether or not
such benefit has commenced) under the terms of the Energizer Holdings, Inc.
Retirement Plan, and (ii) with respect to a Participant who is a Director, the
date such Director resigns or is removed as a Director of the Company and
Subsidiaries following attainment of age 70.
(gg) "PLAN YEAR" means the twelve-consecutive month period
commencing January 1 of each year and ending on December 31, except that the
first Plan Year shall be the period beginning on April 1, 2000 and ending on
December 31, 2000.
(hh) "STOCK" means shares of the Company's common stock, par value
$.01 per share, which consists of shares of a class of common stock designated
as Energizer Common Stock ("ENR Stock") or any such other security outstanding
upon the reclassification or redesignation of the Company's ENR Stock or any
other outstanding class or series of common stock of the Company, including,
without limitation, any stock split-up, stock dividend, creation of tracking
stock, or other distributions of stock in respect of stock, or any reverse stock
split-up, or recapitalization of the Company or any merger or consolidation of
the Company with any Affiliate, or any other transaction, whether or not with or
into or otherwise involving an Acquiring Person.
(ii) "STOCK UNIT" means a stock unit that is equivalent to one
share of Stock.
(jj) "SUBSIDIARY" means any trade or business under common control
with the Company as defined in Code Section 1563(a)(1).
(kk) "TERMINATION FOR CAUSE" means a Participant's termination of
employment with the Company and its Subsidiaries because the Participant
willfully engaged in gross misconduct; provided, however, that a "Termination
for Cause" shall not include a termination attributable to: (i) poor work
performance, bad judgment or negligence on the part of the Participant; or (ii)
an act or omission reasonable believed by the Participant in good faith to have
been in or not opposed to the best interests of his employer and reasonably
believed by the Participant to be lawful.
(ll) "TRUST" means the fund, if any, established in consequence of
and for the purpose of the Plan, to be held in trust by the Trustee, from which
Trust benefits under the Plan may be paid.
(mm) "TRUST AGREEMENT" means the Trust under the Energizer
Holdings, Inc. Deferred Compensation Plan made and entered into by the Company
with the Trustee pursuant to the Plan, as said Trust Agreement may be amended
from time to time.
(nn) "TRUSTEE" means any person, persons or corporation designated
by the Company from time to time to hold, invest and disburse, in accordance
with the Plan and Trust Agreement, the assets of the Plan.
(oo) "VALUATION DATE" means the last business day of each calendar
quarter, unless changed by the Committee, and each special valuation date
designated by the Committee.
2.2 NUMBER AND GENDER.
Wherever appropriate herein, words used in the singular shall be
considered to include the plural and words used in the plural shall be
considered to include the singular. The masculine gender, where appearing in
the Plan, shall be deemed to include the feminine gender.
2.3 HEADINGS.
The headings of Articles and Sections herein are included solely for
convenience and do not bear on the interpretation of the text. If there is any
conflict between such headings and the text of the Plan, the text shall control.
As used in the Plan, the terms "Article", "Section" and "Appendix" mean the text
that accompanies the specified Article, Section or Appendix of the Plan.
<PAGE>
ARTICLE III
PARTICIPATION AND ELIGIBILITY
3.1 ELIGIBILITY.
(a) Employees - The Committee shall select who is eligible to
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participate in the Plan from among the management and highly compensated
Employees of the Company and its Subsidiaries who are subject to the income tax
laws of the United States. In making its selections hereunder, the Committee
shall take into consideration the nature of the services rendered or to be
rendered to the Company and its Subsidiaries by an Employee, his present and
potential contribution to the success of the Company and its Subsidiaries, and
such other factors as the Committee deems relevant in accomplishing the purposes
of the Plan. The Committee shall notify each Participant of his selection as a
Participant.
(b) Directors - A Director is eligible to participate in the Plan.
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3.2 PARTICIPATION.
An Employee or Director shall become a Participant effective as of the
date the Committee determines, which date shall be on or after the date his
Deferred Compensation Agreement becomes effective. Subject to the provisions of
Section 3.3, a Participant shall remain eligible to continue participation in
the Plan for each Plan Year following his initial year of participation in the
Plan.
3.3 DURATION OF PARTICIPATION.
(a) Employee - A Participant who is an Employee shall cease to be a
--------
Participant as of the date on which his or her employment with the Company and
all Subsidiaries terminates or is deemed terminated by the Company, the date the
Committee terminates such Participant's participation in the Plan or the date on
which the Plan terminates, whichever date is earliest.
If the Committee determines in good faith that a Participant no longer
qualifies as a member of a select group of management or highly compensated
employees, as membership in such group is determined in accordance with the
provisions of Section 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee
shall have the right, in its sole discretion, to (i) terminate any deferral
election the Participant has made for the remainder of the Plan Year in which
the Participant's membership changes, (ii) prevent the Participant from making
future deferral elections, and/or (iii) immediately distribute the Participant's
Account in which he is vested and terminate the Participant's participation in
the Plan.
(b) Director - A Participant who is a Director shall cease to be a
--------
Participant as of the date on which he ceases to be a Director, the date the
Committee terminates such Participant's participation in the Plan or the date on
which the Plan terminates, whichever date is earliest.
<PAGE>
ARTICLE IV
DEFERRAL AND MATCHING CONTRIBUTIONS
4.1 DEFERRALS BY PARTICIPANTS.
(a) Deferred Elections by Participants - Before the first day of each
------------------------------------
Plan Year (or the remaining portion thereof for an Employee or Director who
commences participation in the Plan other than on the first day of a Plan Year),
a Participant may file with the Committee a Deferred Compensation Agreement
pursuant to which such Participant elects to make Deferrals for such Plan Year.
Any such Participant election shall be subject to any maximum or minimum
percentage or dollar amount limitations and to any other rules prescribed by the
Committee in its sole discretion.
(b) Crediting of Deferral Amounts - Base Salary Deferrals will be
--------------------------------
credited to the Account of each Participant as of the last day of each calendar
month, provided that such Participant is an Employee on the last day of such
calendar month. A Participant whose employment terminates with the Company and
all Subsidiaries during the calendar month shall be paid in cash the amount of
his Base Salary Deferrals for such month. Bonus Deferrals will be credited to
the Account of each Participant as soon as administratively feasible after such
Bonus Compensation otherwise would have been paid to the Participant in cash,
provided that the Participant is an Employee as of such date. A Participant
whose employment terminates with the Company and all Subsidiaries before his
Bonus Compensation would have been paid to him in cash will be paid his Bonus
Deferral in cash. Director Fee Deferrals will be credited to the Account of
each Participant as soon as administratively feasible after such Director Fees
otherwise would have been paid to the Participant in cash, provided that the
Participant is a Director as of such date. A Participant whose relationship as
a Director terminates before his Director Fees would have been paid to him in
cash will be paid his Director Fee Deferrals in cash.
4.2 EFFECTIVE DATE OF DEFERRED COMPENSATION AGREEMENT.
A Participant's initial Deferred Compensation Agreement shall be
effective as of the date the Participant commences participation in the Plan.
Each subsequent Deferred Compensation Agreement shall become effective on the
first day of the Plan Year to which it relates. If a Participant fails to
complete a Deferred Compensation Agreement on or before the date the Participant
commences participation in the Plan or the first day of any Plan Year, the
Participant shall be deemed to have elected not to make Deferrals for such Plan
Year (or remaining portion thereof if the Participant enters the Plan other than
on the first day of a Plan Year).
4.3 MODIFICATION OR REVOCATION OF ELECTION OF PARTICIPANT.
A Participant may not discontinue or change the amount of his
Deferrals during a Plan Year. Under no circumstances may a Participant's
Deferred Compensation Agreement be made, modified or revoked retroactively.
4.4 MATCHING CONTRIBUTIONS.
For each Plan Year, the Company and/or its Subsidiaries shall make a
Matching Contribution with respect to a Participant's Bonus Deferrals and
Director Fee Deferrals for such Plan Year that are invested in the Stock Unit
fund pursuant to Section 6.3; provided however, that such Bonus Deferrals by
Employees for such Plan Year must be invested in the Stock Unit fund as provided
in Section 6.3 for a period of not less than twelve (12) months beginning on the
date such Bonus Deferrals and Director Fee Deferrals are credited to such
Participant's Account in order to receive such Matching Contribution and that
Director Fee Deferrals must be invested in the Stock Unit fund as provided in
Section 6.3 for a period of not less than twelve (12) months beginning on the
first day of the calendar year in which they are earned. The amount, if any, of
such Matching Contribution for each Plan Year shall be determined by the Company
in its sole discretion.
4.5 MANDATED DEFERRALS.
If the Committee mandates the deferral of any compensation in order to
preserve the deductibility of such compensation when paid, under Code Section
162(m), such amounts shall remain deferred until such time as the Committee
directs. The Participant shall be entitled to elect the hypothetical investment
of such amounts in accordance with Section 7.3. Such mandated deferrals shall
not be entitled to a Matching Contribution and shall be paid in a lump sum as
soon as practicable after they become deductible by the Company or its
Subsidiaries as determined by the Committee.
<PAGE>
ARTICLE V
VESTING
5.1 VESTING IN BASE SALARY DEFERRALS, BONUS DEFERRALS, DIRECTOR FEE
DEFERRALS
AND RALSTON PLAN ACCOUNT.
A Participant shall always be 100% vested in the amounts credited to
his Account attributable to his Base Salary Deferrals, Bonus Deferrals and
Director Fee Deferrals, including earnings thereon. A Participant shall also be
100% vested in his Ralston Plan Account.
5.2 VESTING IN MATCHING CONTRIBUTIONS.
(a) Employees - A Participant who is an Employee shall become 100%
---------
vested in the Matching Contributions and earnings thereon, credited/debited to
his Account for a Plan Year, upon the expiration of thirty-six (36) months
beginning on the first day of the first full month following the date such
Matching Contributions are credited to his Account; provided, however, that in
the event such Participant's employment is terminated with the Company and all
Subsidiaries for any reason other than Retirement, death, Disability,
involuntary termination (other than Termination for Cause) or upon a Change of
Control, the Matching Contributions and earnings thereon in which such
Participant is vested shall be determined as of the date of such termination of
employment.
Notwithstanding the foregoing, a Participant who is an Employee shall,
become 100% vested in the Matching Contributions and earnings thereon,
credited/debited to his Account upon the Participant's Retirement, death,
Disability, involuntary termination (other than Termination for Cause) or upon a
Change of Control.
(b) Directors - A Participant who is a Director, shall always be 100%
---------
vested in the Matching Contributions and earnings thereon in the amounts
credited/debited to his Account.
5.3 DEFERRAL PERIODS.
(a) Employees - A Participant who is an Employee must specify on the
---------
Deferred Compensation Agreement, the Deferral Period for the Deferrals for the
Plan Year to which the Deferred Compensation Agreement relates, and earnings
thereon, subject to certain rules as prescribed by the Committee from time to
time. A Participant shall elect one of the Deferral Period options as follows:
(1) a Deferral Period of at least three (3) years pursuant to which a
distribution is made in January of the fourth (or later) Plan Year following the
Plan Year for which the election of Base Salary Deferrals, and Bonus Deferrals
and Matching Contributions thereon, were made, and (2) termination of employment
with the Company and all Subsidiaries for any reason.
(b) Directors - A Participant who is a Director may not elect a
---------
Deferral Period with respect to Director Fee Deferrals. Payment of such
Director Fee Deferrals shall be made in accordance with the provisions of
Section 7.1.
<PAGE>
ARTICLE VI
ACCOUNTS
6.1 ESTABLISHMENT OF BOOKKEEPING ACCOUNTS.
A separate bookkeeping account shall be maintained for each
Participant. Such account shall be credited with the Deferrals made by the
Participant pursuant to Section 4.1, the Matching Contributions made by the
Company or a Subsidiary pursuant to Section 4.4, and amounts credited to his
Ralston Plan Account and credited (or charged, as the case may be) with the
hypothetical investment results pursuant to Section 6.3.
6.2 SUBACCOUNTS.
Within each Participant's bookkeeping account, separate subaccounts
may be maintained to the extent necessary for the administration of the Plan.
For example, it may be necessary to maintain separate subaccounts where the
Participant has specified different Deferral Periods, methods of payment or
investment directions with respect to his Deferrals for different Plan Years.
6.3 INVESTMENT OF ACCOUNTS.
A Participant shall elect to invest the amounts credited to his
Account in such measurement funds as are selected by the Energizer Plans
Investment Committee in its sole discretion, including but not limited to the
Stock Unit measurement fund. The Energizer Plans Investment Committee may
change or eliminate such measurement funds from time to time. The investment of
such funds shall be made in accordance with such rules and procedures
established by the Committee.
A Participant's Account shall consist of a cash subaccount and a stock
subaccount. Amounts credited to the cash subaccount shall be invested in
investments other than Stock Units. Amounts credited to the stock subaccount
shall be maintained as Stock Units. A Participant shall elect on his Deferred
Compensation Agreement the portion of his Deferrals for a Plan Year that will be
credited to a cash subaccount and to the stock subaccount. The balance of a
Participant's Account as of any date is the aggregate of the cash subaccount and
the stock subaccount as of such date. The balance of each cash subaccount shall
be expressed in United States dollars. The balance of each stock subaccount
shall be expressed in the numbers of shares of Stock deemed credited to such
subaccount, with fractional shares of Stock calculated to three decimal places.
The number of Stock Units credited to the stock subaccount as of any date shall
be equal to the quotient of the amount credited to the stock subaccount divided
by the Market Value on such date. Upon the occurrence of any stock split-up
dividend, issuance of any tracking stock, combination or reclassification with
respect to any outstanding series or class of Stock, or consolidation, merger or
sale of all or substantially all of the assets of the Company, the number of
Stock Units in each stock subaccount shall, to the extent appropriate, be
adjusted accordingly.
Matching Contributions must be invested in the Stock Unit fund for a
period of not less than thirty-six (36) months beginning on the date such
Matching Contributions are credited to a Participant's Account.
As of each Valuation Date, a Participant's Account shall be adjusted
with earnings and losses to reflect the investment elections made by the
Participant.
6.4 HYPOTHETICAL NATURE OF ACCOUNTS.
The Account established under this Article VI shall be hypothetical in
nature and shall be maintained for bookkeeping purposes only so that earnings
and losses on the Base Salary Deferrals, Bonus Contributions and Matching
Contributions made to the Plan can be credited (or charged, as the case may be).
Neither the Plan nor any of the Accounts (or subaccounts) established hereunder
shall hold any actual funds or assets. The right of any person to receive one
or more payments under the Plan shall be an unsecured claim against the general
assets of the Company. Any liability of the Company to any Participant, former
Participant, or Beneficiary with respect to a right to payment shall be based
solely upon contractual obligations created by the Plan. Neither the Company
and/or any Subsidiary, the Board, nor any other person shall be deemed to be a
trustee of any amounts to be paid under the Plan. Nothing contained in the
Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, or a fiduciary relationship, between
the Company and/or any Subsidiary and a Participant or any other person.
<PAGE>
ARTICLE VII
PAYMENT OF ACCOUNT
7.1 TIMING OF DISTRIBUTION OF BENEFITS.
(a) Employees - With respect to a Participant who is an Employee,
---------
distribution of the Participant's Account attributable to Base Salary Deferrals,
Bonus Deferrals and Matching Contributions in which such Participant is vested,
shall be made as soon as practicable following the date the Deferral Period for
such Deferrals ends; provided, however, that in the event such Participant's
employment is terminated with the Company and all Subsidiaries for any reason
prior to the end of the Deferral Period for such Deferrals, the total amount of
the Participant's Base Salary Deferrals, Bonus Deferrals, Matching Contributions
and Ralston Plan Account, and earnings thereon in which such Participant is
vested shall be distributed to such Participant as soon as practicable following
such termination of employment notwithstanding the Deferral Period elected by
such Participant with respect to such Deferrals.
(b) Directors - With respect to a Participant who is a Director,
---------
distribution of the Participant's Account shall be made not later than sixty
(60) days following the date the Participant's relationship as a Director
terminates.
7.2 ADJUSTMENT FOR INVESTMENT GAINS AND LOSSES UPON A DISTRIBUTION.
Upon a distribution pursuant to this Article VII, the balance of a
Participant's Account shall be determined as of the Valuation Date immediately
preceding the date of the distribution to be made and shall be adjusted for
investment gains and losses which have accrued to the date of distribution but
which have not been credited to his Account.
7.3 FORM OF PAYMENT OR PAYMENTS.
Deferrals and Matching Contributions, made to the Plan for a Plan Year
and earnings thereon, shall be distributed to the Participant in accordance with
the form of payment specified as follows:
(a) Lump Sum Payment-A Participant who is an Employee shall be
------------------
paid his benefit in the form of a lump sum payment if the vested amount to be
distributed to such Participant, determined as of the date such amount is to be
distributed, is less than $50,000. A Participant who is a Director shall
receive payment of his Account in a lump sum payment.
(b) Annual Installment Payment-A Participant who is an Employee
----------------------------
may elect, in his Deferred Compensation Agreement, to be paid his benefit in a
series of annual installment payments provided that the vested amount of the
total installment payments to be distributed to such Participant, determined as
of the date such amount is to be distributed, is equal to or greater than
$50,000. If a Participant does not elect payment in the form of installment
payments or if the vested amount of the total installment payments to be
distributed to such Participant determined as of the date such amount is to
commence to be distributed is less than $50,000 at the time such payment is to
be made, his benefit shall be paid in the form of a lump sum payment. If a
benefit is to paid in a series of annual installment payments, the annual
installment payments may be made for a period equal to five (5) or ten (10)
years. Annual installments shall commence within 60 days of termination of
employment with the Company and all Subsidiaries provided that the vested amount
of the total installment payments to be distributed to such Participant
determined as of the date such amount is to commence to be distributed is equal
to or greater than $50,000. Subsequent annual installment payments shall be
paid as soon as administratively feasible after January l of each year. The
amount of each annual installment payment shall be calculated by multiplying the
total amount to be distributed to such Participant by a fraction, the numerator
of which is one, and the denominator of which is the remaining number of annual
installment payments to be made to the Participant.
7.4 DEATH BENEFITS
(a) Employees - In the event of the death of a Participant who is an
---------
Employee prior to attainment of age fifty (50) years, the total amount credited
to the Participant's Account shall be paid in a lump sum to the Beneficiary. If
a Participant who is an Employee dies on or after attainment of age fifty (50)
years, the total amount credited to the Participant's Account shall be paid to
the Participant's Beneficiary in accordance with the applicable form of
distribution elected by the Participant. If no Beneficiary is designated, then
benefits shall be paid in a lump sum to the Participant's estate or as provided
by law. Distribution shall be made (and, in the case of installment payments,
shall commence) no later than sixty (60) days following the Participant's death.
(b) Directors - In the event of the death of a Participant who is a
---------
Director, the amount credited to the Participant's Account shall be paid in a
lump sum not later than sixty (60) days following the date of such Participant's
death.
7.5 DESIGNATION OF BENEFICIARIES.
A Participant may designate the Beneficiary or Beneficiaries to whom
his benefit under the Plan shall be paid if he dies before he receives complete
payment of such benefit. A Beneficiary designation (i) must be made on a
beneficiary designation form provided by the Committee, (ii) shall be effective
on the date such designation form is actually received by the Committee, and
(iii) shall revoke all prior designations made by the Participant. A
Beneficiary designation form received by the Committee after the date of the
Participant's death shall be null and void. If a Participant has not designated
a Beneficiary, if no designated Beneficiary survives the Participant or if the
Beneficiary designation is legally invalid for any reason, then, the
Participant's Beneficiary shall be the Participant's executor or administrator,
or his heirs at law if there is no administration of such Participant's estate.
7.6 UNCLAIMED BENEFITS.
In the case of a benefit payable on behalf of such Participant, if the
Committee is unable to locate the Participant or Beneficiary to whom such
benefit is payable, such benefit may be forfeited to the Company, upon the
Committee's determination. Notwithstanding the foregoing, if subsequent to any
such forfeiture the Participant or Beneficiary to whom such benefit is payable
makes a valid claim for such benefit, such forfeited benefit shall be paid by
the Company or restored to the Plan by the Company.
7.7 WITHDRAWAL.
A Participant (or, after a Participant's death, his or her
Beneficiary) may elect, at any time, to withdraw all of his Account in
accordance with such rules and procedures prescribed by the Committee. No
partial withdrawals of a Participant's Account may be made. The Participant (or
his or her Beneficiary) shall make this election by giving the Committee advance
written notice of the election in a form determined from time to time by the
Committee. The Participant (or his or her Beneficiary) shall be paid the
withdrawal amount within 60 days of his or her election. The Committee may
impose suspensions of future deferrals or other penalties as a condition to such
withdrawals. The payment of this Withdrawal Amount shall not be subject to the
deduction limitation under Code Section 162(m).
<PAGE>
ARTICLE VIII
ADMINISTRATION
The Plan shall be administered by the Committee. The Committee shall
have all powers necessary or appropriate to enable it to carry out its
administrative duties. Not in limitation, but in application of the foregoing,
the Committee shall have the duty and power to interpret the Plan and determine
all questions that may arise hereunder as to the status and rights of Employees,
Participants, and Beneficiaries. The Committee may exercise the powers hereby
granted in its sole and absolute discretion. The decisions of the Committee,
including but not limited to interpretations and determinations of amounts due
under the Plan, shall be final and binding on all parties. No member of the
Committee shall be personally liable for any actions taken by the Committee
unless the member's action involves willful misconduct. The Committee may
delegate its administrative responsibilities to any Employee of the Company
provided such designation is in writing.
<PAGE>
ARTICLE IX
AMENDMENT AND TERMINATION
The power to amend, modify or terminate the Plan in whole or in part
and at any time is reserved to the Committee. Notwithstanding the foregoing, no
amendment or modification which would reasonably be considered to be adverse to
a Participant or Beneficiary may apply to or affect the terms of any deferral of
compensation that was approved prior to the effective date of such amendment or
modification without the consent of the Participant or Beneficiary affected
thereby.
The Board reserves the right to terminate the Plan in whole or in
part, but such termination shall not affect the Deferred Compensation Agreements
then in effect, except that no additional amounts may be deferred by
Participants to the Plan after the date of termination of the Plan.
Upon termination of the Plan, all benefits shall be paid at such time
and in such manner as provided in Article VII.
<PAGE>
ARTICLE X
GENERAL PROVISIONS
10.1 NON-ALIENATION OF BENEFITS.
No right or benefit under the Plan shall be subject to anticipation,
alienation, sale, assignment, pledge, encumbrance, or charge, and any attempt to
anticipate, alienate, sell, assign, pledge, encumber, or change any right or
benefit under this Plan shall be void. No right or benefit hereunder shall in
any manner be liable for or subject to the debts, contracts, liabilities or
torts of the person entitled to such benefits. If the Participant or
Beneficiary becomes bankrupt, or attempts to anticipate, alienate, sell, assign,
pledge, encumber, or change any right hereunder, then such right or benefit
shall, in the discretion of the Committee, cease and terminate, and in such
event, the Committee may hold or apply the same or any part thereof for the
benefit of the Participant or Beneficiary, spouse, children, or other
dependents, or any of them in such manner and in such amounts and proportions as
the Committee may deem proper.
10.2 CONTRACTUAL RIGHT TO BENEFITS FUNDING.
The Plan creates and vests in each Participant a contractual right to
the benefits to which he is entitled hereunder, enforceable by the Participant
against the Company. The benefits to which a Participant is entitled under the
Plan shall be paid from the general assets of the Company or from the Trust that
may be established or maintained to provide such benefits.
If a Trust is established and maintained, amounts deposited with the
Trustee shall be held and disposed of in accordance with the terms of the Trust
Agreement and payments made under the terms of the Trust Agreement shall be in
satisfaction of claims against the Company under the Plan. Nothing in the Plan
or Trust Agreement shall relieve the Company of its liabilities to pay amounts
under the Plan except to the extent that such liabilities are met from the use
of the assets held in Trust.
10.3 INDEMNIFICATION AND EXCULPATION.
The members of the Committee and their agents, and the officers,
directors and employees of the Company and any Subsidiary shall be indemnified
and held harmless by the Company against and from any and all loss, cost,
liability, or expense that may be imposed upon or reasonably incurred by them in
connection with or resulting from any claim, action, suit, or proceeding to
which they may be a party or in which they may be involved by reason of any
action taken or failure to act under this Plan and against and from any and all
amounts paid by them in settlement (with the Company's written approval) or paid
by them in satisfaction of a judgment in any such action, suit, or proceeding.
The foregoing provision shall not be applicable to any person if the loss, cost,
liability, or expense is due to such person's gross negligence or willful
misconduct.
10.4 NO EMPLOYMENT AGREEMENT.
The Plan is not a contract of employment, and participation in the
Plan shall not confer on any Employee the right to be retained in the employ of
the Company and/or any Subsidiary.
10.5 CLAIMS FOR BENEFITS.
A Participant or Beneficiary may claim any benefit to which he or she
is entitled under this Plan by a written notice to the Committee. If a claim is
denied, it must be denied within a reasonable period of time, and be contained
in a written notice stating the following:
(a) The specific reason for the denial.
(b) Specific reference to the Plan provision on which the denial
is based.
(c) Description of additional information necessary for the
claimant to present his claim, if any, and an explanation of why such material
is necessary.
(d) An explanation of the Plan's claims review procedure.
The claimant will have sixty (60) days to request a review of the
denial by the Committee, which will provide a full and fair review. The request
for review must be in writing delivered to the Committee. The claimant may
review pertinent documents, and he may submit issues and comments in writing.
The decision by the Committee with respect to the review must be given within
sixty (60) days after receipt of the request, unless special circumstances
require an extension (such as for a hearing). In no event shall the decision be
delayed beyond one hundred and twenty (120) days after receipt of the request
for review. The decision shall be written in a manner calculated to be
understood by the claimant, and it shall include specific reasons and refer to
specific Plan provisions as to its effect.
10.6 SUCCESSOR TO COMPANY.
The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Company, expressly and
unconditionally to assume and agree to perform the Company's obligations under
this Plan, in the same manner and to the same extent that the Company would be
required to perform. Accordingly, this Plan and the related Deferred
Compensation Agreements shall be binding upon, and the term "Company" shall
include any successor or assignee to the business or assets of the Company.
10.7 SEVERABILITY.
In the event any provision of the Plan shall be held invalid or
illegal for any reason, any illegality or invalidity shall not affect the
remaining parts of the Plan, but the Plan shall be construed and enforced as if
the illegal or invalid provision had never been inserted, and the Company shall
have the privilege and opportunity to correct and remedy such questions of
illegality or invalidity by amendment as provided in the Plan.
10.8 TRANSFER AMONG AFFILIATES.
In the event the employment of a Participant is transferred from the
Company to any corporation or other entity that is an affiliate of the Company
and that adopts this Plan, or is transferred from one such affiliate to another,
the benefits attributable to compensation deferred with respect to each such
entity shall be credited to a separate bookkeeping account. Each such
corporation shall pay the benefit that is reflected in the Participant accounts
established with respect to such corporation. The Company hereby guarantees
payment of the total benefit, regardless of which entity is primarily liable for
payment of any portion of such benefit.
10.9 ENTIRE PLAN.
This document and any amendments contain all the terms and provisions
of the Plan and shall constitute the entire Plan, any other alleged terms or
provisions being of no effect.
10.10 PAYEE NOT COMPETENT.
In the event that the Committee shall find that the Participant is
unable to care for his affairs because of illness or accident, the Committee may
direct that any benefit payment due him, unless claim shall have been made
therefor by a duly appointed legal representative, be paid to his spouse, a
child, a parent or other blood relative, or to a person with whom he resides,
and any such payment so made shall be a complete discharge of the liabilities of
the Plan therefor.
10.11 TAX WITHHOLDING.
The Company shall withhold from amounts due under this Plan, the
amount necessary to enable the Company to remit to the appropriate government
entity or entities on behalf of the Participant as may be required by the
federal income tax withholding provisions of the Code, by an applicable state's
income tax, or by an applicable city, county or municipality's earnings or
income tax act. The Company shall withhold from the payroll of, or collect
from, a Participant the amount necessary to remit on behalf of the Participant
any FICA taxes which may be required with respect to amounts accrued by a
Participant hereunder, as determined by the Company.
10.12 GOVERNING LAW.
To the extent not superceded by the laws of the United States, this
Plan shall be construed and governed in accordance with the laws of the state of
Missouri.
IN WITNESS WHEREOF, the Company has caused this Plan to be properly
executed on the ______ day of _____________________, 2000.
ENERGIZER HOLDINGS, INC.
BY:
ITS:
Energizer Holdings, Inc.
800 Chouteau
St. Louis, Missouri 63102
Re: Energizer Holdings, Inc. Deferred Compensation Plan
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 (the "Registration
Statement") being filed with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, on March 30, 2000, by Energizer
Holdings, Inc., a Missouri corporation (the "Company"), pertaining to the
proposed issuance by the Company of up to 500,000 stock units equivalent to
shares of the Company's common stock, $.01 par value (the "Units"), as provided
in the Energizer Holdings, Inc. Deferred Compensation Plan (the "Plan"), we have
examined such corporate records of the Company, such laws and such other
information as we have deemed relevant, including the Company's Articles of
Incorporation, By-Laws, and resolutions adopted by the Board of Directors
relating to such issuance, the written documents constituting the Plan,
certificates received from state officials and statements we have received from
officers and representatives of the Company. In delivering this opinion, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, the
authenticity of originals of all such latter documents, and the correctness of
statements submitted to us by officers and representatives of the Company.
Based solely on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and is validly existing under the laws
of the State of Missouri; and
2. The Units to be issued by the Company pursuant to the Plan have been duly
authorized and, when issued by the Company in accordance with the Plan, will be
binding obligations of the Company.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. We further consent to the filing of copies of this opinion with
agencies of such states and other jurisdictions as you deem necessary in the
course of complying with the laws of the states and jurisdictions regarding the
sale and issuance of the Shares in accordance with the Plan.
Very truly yours,
/s/ Thompson Coburn LLP
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Energizer Holdings, Inc. (the "Company") of our report, dated
February 17, 2000, appearing in the Company's Registration Statement on Form 10
under the Securities Exchange Act of 1934, filed on October 15, 1999, as amended
on January 11, 2000, February 23, 2000 and March 16, 2000.
PRICEWATERHOUSECOOPERS LLP
/s/ PricewaterhouseCoopers LLP
St. Louis, Missouri
March 30, 2000
