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.
2000 INCENTIVE STOCK 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
CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES
TO BE REGISTERED AMOUNT TO BE REGISTERED PROPOSED MAXIMUM OFFERING PRICE
PER SHARE(1) PROPOSED MAXIMUM AGGREGATE OFFERING PRICE (1) AMOUNT OF
REGISTRATION FEE
Shares of Energizer Holdings, Inc.
Common Stock
$.01 par value 15,000,000 shares $22.375 $335,625,000 $88,605
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(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 $22.375 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 April 10, 2000.
<PAGE>
ENERGIZER HOLDINGS, INC.
2000 INCENTIVE STOCK PLAN
Item 3. Incorporation of Documents by Reference.
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The description of the shares of common stock, par value $.01 per share, of
Energizer Holdings, Inc. (the "Company"), including the Rights related to the
shares, as set forth in the Rights Agreement, dated as of March 31, 2000 between
the Company and Continental Stock Transfer & Trust Company, as Rights Agent,
contained 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, March 16, 2000 and April 19, 2000,
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 Securities Exchange Act of 1934, as amended, 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.
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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.
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See the Exhibit Index located at page 6 hereof.
Item 9. Undertakings.
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(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 19th day of
April, 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 April 19, 2000.
SIGNATURE TITLE
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/s/ J. Patrick Mulcahy
J. Patrick Mulcahy Director and Chief Executive Officer
/s/ Daniel E. Corbin, Jr.
Daniel E. Corbin, Jr. Executive Vice President, Finance and Control
/s/ Mark Schafale
Mark Schafale Controller
/s/ William P. Stiritz
William P. Stiritz Chairman of the Board
/s/ William H. Danforth
Dr. William H. Danforth Director
/s/ F. Sheridan Garrison
F. Sheridan Garrison Director
/s/ R. David Hoover
R. David Hoover Director
/s/ Richard A. Liddy
Richard A. Liddy Director
/s/ Joe R. Micheletto
Joe R. Micheletto Director
/s/ Robert A. Pruzan
Robert A. Pruzan Director
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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Exhibit 4.1 Energizer Holdings, Inc. 2000 Incentive Stock Plan
Exhibit 5 Opinion of Harry L. Strachan, Esq.
Exhibit 23 Consent of Independent Accountants
ENERGIZER HOLDINGS, INC.
2000 INCENTIVE STOCK PLAN
Section I. General Provisions
A. Purpose of Plan
The purpose of the Energizer Holdings, Inc. Incentive Stock Plan (the "Plan") is
to enhance the profitability and value of the Company for the benefit of its
shareholders by providing for stock options and other stock awards to attract,
retain and motivate officers and other key employees who make important
contributions to the success of the Company, and to provide equity-linked
compensation for directors.
B. Definitions of Terms as Used in the
Plan
"Affiliate" shall mean any entity fifty percent or more of whose outstanding
voting securities, or beneficial ownership for entities other than corporations,
is owned, directly or indirectly, by the Company, or which otherwise controls,
is controlled by, or is under common control with, the Company.
"Award" shall mean an Option, including a Restoration Option, or any Other Stock
Award, granted under the terms of the Plan.
"Award Agreement" shall mean the document or documents evidencing an Award
granted under the Plan.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder.
"Committee" shall mean the Nominating and Executive Compensation Committee of
the Board, or any successor committee the Board may designate to administer the
Plan. Each member of the Committee shall be (i) an "outside director" within
the meaning of Section 162(m) of the Code, subject to any transitional rules
applicable to the definition of outside director, and (ii) a "Non-Employee
Director" within the meaning of Rule 16b-3 under the Exchange Act, or otherwise
qualified to administer the Plan as contemplated by that Rule or any successor
Rule under the Exchange Act.
"Common Stock" shall mean Energizer Holdings, Inc. $.01 par value Common Stock,
and, at the discretion of the Board, may also mean any other authorized class or
series of common stock of an Affiliate or common stock of the Company
outstanding upon the reclassification of the Common Stock or any other class or
series of common stock, including, without limitation, by means of any stock
split, stock dividend, creation of targeted stock, or other distributions of
stock in respect of stock, or any reverse stock split, or by reason of any
recapitalization, merger or consolidation of the Company.
"Company" shall mean Energizer Holdings, Inc.
"Corporate Officer" shall mean any President, Chief Executive Officer, Corporate
Vice President, Controller, Secretary or Treasurer of the Company, and any other
officers designated as corporate officers by the Board.
"Director" shall mean any member of the Board.
"Employee" shall mean any person who is employed by the Company or an Affiliate,
including Corporate Officers.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" of the Common Stock shall mean the closing price as reported
on the Composite Tape of the New York Stock Exchange, Inc. on the date that such
Fair Market Value is to be determined, or if no shares were traded on the
determination date, the immediately preceding day on which the Common Stock was
traded, or the fair market value as determined by any other method adopted by
the Committee (or with respect to Awards granted to Directors, by the Board)
which the Committee or the Board, as the case may be, may deem appropriate under
the circumstances, or as may be required in order to comply with or to conform
to the requirements of applicable laws or regulations.
"Incentive Stock Options" shall mean Options that qualify as such under Section
422 of the Code.
"Non-Qualified Stock Options" shall mean Options that do not qualify as
Incentive Stock Options.
"Option" shall mean the right, granted under the Plan, to purchase a specified
number of shares of Common Stock, at a fixed price for a specified period of
time.
"Other Stock Award" shall mean any Award granted under Section III of the Plan.
"Phantom Stock Option" shall mean an Option, granted under the Plan, which
provides that in lieu of receiving shares of Common Stock upon exercise, the
recipient will receive an amount equal to the excess of the Fair Market Value of
the Common Stock at exercise over the exercise price set forth in the Award
Agreement for the Phantom Stock Option.
"Restoration Option" shall mean an Option granted upon exercise of an
outstanding Option, provided that the exercise price is paid by tendering
previously owned shares of Common Stock by the Employee or Director.
"Restricted Stock Award" shall mean an Award of shares of Common Stock on which
are imposed restrictions on transferability or other shareholder rights,
including, but not limited to, restrictions which subject such Award to a
"substantial risk of forfeiture" as defined in Section 83 of the Code.
"Stock Appreciation Right" shall mean a right granted under the terms of the
Plan to receive an amount equal to the excess of the Fair Market Value of one
share of Common Stock as of the date of exercise of the Stock Appreciation Right
over the price per share of Common Stock specified in the Award Agreement of
which it is a part.
"Termination for Cause" shall mean an Employee's termination of employment with
the Company or an Affiliate because of the Employee's willful engaging in gross
misconduct, provided, however, that a Termination for Cause shall not include
termination attributable to (i) poor work performance, bad judgment or
negligence on the part of the Employee, (ii) an act or omission believed by the
Employee in good faith to have been in or not opposed to the best interests of
the Company and reasonably believed by the Employee to be lawful, or (iii) the
good faith conduct of the Employee in connection with a change of control of the
Company (including opposition to or support of such change of control).
C. Scope of Plan and Eligibility
Any Employee selected by the Committee, and any member of the Board, shall be
eligible for any Award contemplated under the Plan.
D. Authorization and Reservation
The Company shall establish a reserve of authorized shares of Common Stock in
the amount of 15,000,000 shares. This reserve shall represent the total number
of shares of Common Stock that may be presently issued pursuant to Awards,
including Restoration Options, subject to increase as described below. The
reserves may consist of authorized but unissued shares of Common Stock or of
reacquired shares, or both. Upon the forfeiture or expiration of an Award, all
shares of Common Stock not issued thereunder shall become available for the
granting of additional Awards. In addition, when a Restoration Option is
granted upon the tendering of shares of Common Stock in payment of the exercise
price of any Options, the reserve shall be increased in an amount equal to the
number of shares so tendered, and such additional reserved shares shall become
available for the granting of additional Awards. Awards under the Plan which
are payable in cash will not be counted against the reserve unless actual
payment is made in shares of Common Stock instead of cash.
E. Grant of Awards and Administration of the Plan
1. The Committee shall determine those Employees eligible to receive Awards and
the amount, type and terms of each Award, subject to the provisions of the Plan,
and it shall have the power to delegate responsibility to others to select
Employees other than Corporate Officers eligible to receive Awards and the
amount of each such Award, on terms determined by the Committee. The Board
shall determine the amount, type and terms of each Award to a Director, subject
to the provisions of the Plan. In making any determinations under the Plan, the
Committee or the Board, as the case may be, shall be entitled to rely on
reports, opinions or statements of officers or employees of the Company, as well
as those of counsel, public accountants and other professional or expert
persons. All determinations, interpretations and other decisions under or with
respect to the Plan or any Award by the Committee or the Board, as the case may
be, shall be final, conclusive and binding upon all parties, including without
limitation, the Company, any Employee or Director, and any other person with
rights to any Award under the Plan, and no member of the Board or the Committee
shall be subject to individual liability with respect to the Plan.
2. The Committee shall administer the Plan and, in connection therewith, it
shall have full power to construe and interpret the Plan, establish rules and
regulations and perform all other acts it believes reasonable and proper,
including the power to delegate responsibility to others to assist it in
administering the Plan. To the extent, however, that such construction and
interpretation or establishment of rules and regulations relates to or affects
any Awards granted to Directors, the Board must ratify such construction,
interpretation or establishment.
3. During the term of the Plan, the aggregate number of shares of Common Stock
that may be the subject of performance-based Awards (as defined in Section
162(m) of the Code), excluding Restoration Options, that may be granted to an
Employee or Director during any one fiscal year may not exceed 1,900,000. The
aggregate number of shares of Common Stock that may be the subject of
Restoration Options that may be granted to an Employee or Director during any
one fiscal year may not exceed 950,000. These amounts are subject to adjustment
as provided in Section VI. F. below. The maximum number of shares with regard
to which Options and Stock Appreciation Rights may be granted to any individual
during any one fiscal year is 1,900,000. Any stock-related deferred
compensation will not be applied against this limit. Awards granted in a fiscal
year but cancelled during that same year will continue to be applied against the
annual limit for that year, despite cancellation.
4. Awards granted under the Plan shall be evidenced in the manner prescribed by
the Committee from time to time in accordance with the terms of the Plan. The
terms of each Award shall be set forth in an Award Agreement, and the Committee
may require that a recipient execute and deliver the Award Agreement to the
Company in order to evidence his or her acceptance of the Award.
Section II. Stock Options
A. Description
The Committee or, in the case of Awards granted to Directors, the Board, may
grant Incentive Stock Options and it may grant Non-Qualified Stock Options. At
the discretion of the Committee or the Board, in the case of Options granted to
Directors, an Employee or Director may also be eligible to receive a Restoration
Option in connection with an Option exercise, as more particularly set forth
below.
B. Terms and Conditions
1. Each Option shall be set forth in a written Award Agreement containing such
terms and conditions as the Committee, or in the case of Awards granted to
Directors, the Board, may determine, subject to the provisions of the Plan.
2. The option price of shares of Common Stock subject to any Option shall not
be less than the Fair Market Value of the Common Stock at the time that the
Option is granted.
3. The Committee, or in the case of Awards granted to Directors, the Board,
shall determine the vesting schedules and the terms, conditions and limitations
governing exercisability of Options granted under the Plan. Unless accelerated
in accordance with its terms, an Option may not be exercised until a period of
at least one year has elapsed from the date of grant, and the term of any Option
granted hereunder shall not exceed ten years.
4. The purchase price of any shares of Common Stock pursuant to exercise of any
Option must be paid in full upon such exercise. The payment shall be made in
cash, in United States dollars, or by tendering shares of Common Stock owned by
the Employee or Director (or the person exercising the Option). If shares of
Common Stock are tendered, they must have been owned at least six months prior
to the date of tender (or such other time period as may be determined by the
Committee).
5. The terms and conditions of any Incentive Stock Options granted hereunder
shall be subject to and shall be designed to comply with, the provisions of
Section 422 of the Code, and any other administrative procedures adopted by the
Committee from time to time. Incentive Stock Options may not be granted to any
person who is not an Employee at the time of grant.
C. Restoration Options
The Committee, or, in the case of Awards granted to Directors, the Board, may
provide either at the time of grant or subsequently that an option include the
right to acquire a Restoration Option. An option which provides for the grant
of a Restoration Option shall entitle the Employee or Director, upon exercise of
the option (in whole or in part) prior to termination of employment or
retirement or resignation as a Director, and payment of the exercise price in
shares of Common Stock, to receive a Restoration Option. In addition to any
other terms and conditions set forth in the Award Agreement, the Restoration
Option shall be subject to the following terms: (i) the number of shares of
Common Stock which are the subject of the Restoration Option shall not exceed
the number of shares used to satisfy the option price of the original option
(which shares must have been owned for the time period described in B.4. above),
(ii) the grant date of the Restoration Option will be the date of exercise of
the original option, (iii) the exercise price per share shall be the Fair Market
Value on the Restoration Option grant date, (iv) the Restoration Option, unless
accelerated, in accordance with its terms, shall be exercisable no earlier than
one year after its grant date, (v) the term of the Restoration Option shall not
extend beyond the term of the original option, and (vi) the Restoration Option
will comply with all other provisions of the Plan. The Committee, or in the
case of Awards granted to Directors, the Board, shall, in addition to all other
powers granted to it under the Plan, have the power to designate any limitations
on the frequency of the grants of Restoration Options to any Employee or
Director, and may require, as a condition to the grant of Restoration Options,
that the recipient agree not to resell shares received upon exercise of the
original option (which original option may be a Restoration Option) for a
specific period.
Section III. Other Stock Awards
In addition to Options, the Committee or, in the case of Awards granted to
Directors, the Board may grant Other Stock Awards payable in Common Stock or
cash, upon such terms and conditions as the Committee or Board may determine,
subject to the provisions of the Plan. Other Stock Awards may include, but are
not limited to, the following types of Awards:
A. Restricted Stock Awards
The Committee or, in the case of Awards granted to Directors, the Board may
grant Restricted Stock Awards, each of which consists of a grant of shares of
Common Stock, subject to terms and conditions determined by the Committee or
Board in its sole discretion as well as to the provisions of the Plan. Such
terms and conditions shall be set forth in a written Award Agreement. The
shares of Common Stock granted will be restricted and may not be sold, pledged,
transferred or otherwise disposed of until the lapse or release of restrictions
in accordance with the terms of the Award Agreement and the Plan. Prior to the
lapse or release of restrictions, all shares of Common Stock which are the
subject of a Restricted Stock Award are subject to forfeiture in accordance with
Section IV of the Plan. Shares of Common Stock issued pursuant to a Restricted
Stock Award will be issued for no monetary consideration.
B. Stock Related Deferred Compensation
The Committee may, in its discretion, permit the deferral of payment of an
Employee's cash bonus or other cash compensation in the form of either Common
Stock or Common Stock equivalents (with each such equivalent corresponding to a
share of Common Stock), under such terms and conditions as the Committee may
prescribe in the Award Agreement relating thereto, including the terms of any
deferred compensation plan under which such Common Stock equivalents may be
granted. In addition, the Committee may, in any fiscal year, provide for an
additional matching deferral to be credited to an Employee's account under such
deferred compensation plans. The Committee may also permit account balances of
other cash or mutual fund accounts maintained pursuant to such deferred
compensation plans to be converted, at the discretion of the participant, into
the form of Common Stock equivalents, or to permit Common Stock equivalents to
be converted into account balances of such other cash or mutual fund accounts,
upon the terms set forth in such plans as well as such other terms and
conditions as the Committee may, in its discretion, determine. The Committee
may, in its discretion, determine whether any deferral in the form of Common
Stock equivalents, including deferrals under the terms of any deferred
compensation plans of the Company, shall be paid on distribution in the form of
cash or in shares of Common Stock.
C. Stock Appreciation Rights and Phantom Stock Options
The Committee or in the case of Awards granted to Directors, the Board, may, in
its discretion, grant Stock Appreciation Rights or Phantom Stock Options to
Employees or Directors, subject to terms and conditions determined by the
Committee or Board in its sole discretion. Such terms and conditions shall be
set forth in a written Award Agreement. Each Stock Appreciation Right or
Phantom Stock Option shall entitle the holder thereof to elect, prior to its
cancellation or termination, to exercise such unit or option and receive either
cash or shares of Common Stock, or both, as the Committee or Board may
determine, in an aggregate amount equal in value to the excess of the Fair
Market Value of the Common Stock on the date of such election over the Fair
Market Value on the date of grant of the Stock Appreciation Right or Phantom
Stock Option; except that if an option is amended to include Stock Appreciation
Rights, the designated Fair Market Value in the applicable Award Agreement may
be the Fair Market Value on the date that the Option was granted. The Committee
or Board may provide that a Stock Appreciation Right shall be automatically
exercised on one or more specified dates. Stock Appreciation Rights may be
granted on a "free-standing" basis or in conjunction with all or a portion of
the shares of Common Stock covered by an Option, either at the time of grant of
the Option or at any time thereafter during the term of the Option. In addition
to any other terms and conditions set forth in the Award Agreement, Stock
Appreciation Rights and Phantom Stock Options shall be subject to the following
terms: (i) Stock Appreciation Rights and Phantom Stock Options, unless
accelerated in accordance with their terms, may not be exercised within the
first year after the date of grant, (ii) the Committee or Board, as the case may
be, may, in its sole discretion, disapprove an election to surrender any Stock
Appreciation Right or Phantom Stock Option for cash in full or partial
settlement thereof, provided that such disapproval shall not affect the
recipient's right to surrender the Stock Appreciation Right or Phantom Stock
Option at a later date for shares of Common Stock or cash, and (iii) no Stock
Appreciation Right or Phantom Stock Option may be exercised unless the holder
thereof is at the time of exercise an Employee or Director and has been
continuously since the date the Stock Appreciation Right or Phantom Stock Option
was granted, except that the Committee or Board may permit the exercise of any
Stock Appreciation Right or Phantom Stock Option for any period following the
recipient's termination of employment or retirement or resignation from the
Board, not in excess of the original term of the Award, on such terms and
conditions as it shall deem appropriate and specify in the related Award
Agreement.
D. Performance-Based Other Stock Awards
The payment under any Other Stock Award that may be the subject of a
performance-based Award (as defined in Section 162(m) of the Code) (hereinafter
"Target Award") shall be contingent upon the attainment of one or more
pre-established performance goals established by the Committee in writing within
ninety (90) days of the commencement of the Target Award performance period (or
in the case of a newly hired Employee, before 25% of such Employee's service for
such Target Award performance period has lapsed). Such performance goals will
be based upon one or more of the following performance-based criteria: (a)
earnings per share; (b) income or net income; (c) return measures (including,
but not limited to, return on assets, capital, equity or sales); (d) cash flow
return on investments which equals net cash flows divided by owners equity; (e)
controllable earnings (a division's operating profit, excluding the amortization
of goodwill and intangible assets, less a charge for the interest cost for the
average working capital investment by the division); (f) operating earnings or
net operation earnings; (g) cost control; (h) share price (including, but not
limited to, growth measures); (i) total shareholder return (stock price
appreciation plus dividends); (j) economic value added; (k) EBITDA; (l)
operating margin (m) market share and (n) cash flow from operations.
Performance may be measured on an individual, corporate group, business unit, or
consolidated basis and may be measured absolutely or relatively to the Company's
peers. In establishing the Performance Goals, the Committee may account for the
effects of acquisitions, divestitures, extraordinary dividends, stock split-ups,
stock dividends or distributions, issuances of any targeted stock,
recapitalizations, warrants or rights issuances or combinations, exchanges or
reclassifications with respect to any outstanding class or series of Stock, or a
corporate transaction, such as any merger of the Company with another
corporation, any consolidation of the Company and another corporation into
another corporation, any separation of the Company or its business units
(including a spinoff or other distribution of stock or property by the Company),
any reorganization of the Company (whether or not such reorganization comes
within the definition of such term in Code Section 368) or any partial or
complete liquidation by the Company, or sale of all or substantially all of the
assets of the Company, or other extraordinary items.
The Committee, in its discretion, may cancel or decrease an earned Target Award,
but, except as otherwise permitted by Treasury Regulation Section
1.162-27(e)(2)(iii)(C), may not, under any circumstances, increase such award.
Before payments are made under a Target Award, the Committee shall certify in
writing that the performance goals justifying the payment under Target Award
have been met.
Section IV. Forfeiture of Awards
A. Unless the Committee, or in the case of a Director, the Board, shall have
determined otherwise, the recipient of any Award pursuant to the Plan shall
forfeit the Award, to the extent not then payable or exercisable, upon the
occurrence of any of the following events:
1. The recipient is Terminated for Cause.
2. The recipient voluntarily terminates his or her employment other than by
retirement after attainment of age 62, or such other age as may be provided for
in the Award Agreement.
3. The recipient engages in competition with the Company or any Affiliate.
4. The recipient engages in any activity or conduct contrary to the best
interests of the Company or any Affiliate, including, but not limited to,
conduct that breaches the recipient's duty of loyalty to the Company or an
Affiliate or that is materially injurious to the Company or an Affiliate,
monetarily or otherwise. Such activity or conduct may include: (i) disclosing
or misusing any confidential information pertaining to the Company or an
Affiliate; (ii) any attempt, directly or indirectly, to induce any Employee of
the Company or any Affiliate to be employed or perform services elsewhere, or
(iii) any direct or indirect attempt to solicit, or assist another employer in
soliciting, the trade of any customer or supplier or prospective customer of the
Company or any Affiliate.
B. The Committee or the Board, as the case may be, may include in any Award
Agreement any additional or different conditions of forfeiture it may deem
appropriate, and may waive any condition of forfeiture stated above or in the
Award Agreement.
C. In the event of forfeiture, the recipient shall lose all rights in and to
portions of the Award which are not vested or which are not exercisable. Except
in the case of Restricted Stock Awards as to which restrictions have not lapsed,
this provision, however, shall not be invoked to require any recipient to
transfer to the Company any Common Stock already received under an Award.
D. Such determinations as may be necessary for application of this Section,
including any grant of authority to others to make determinations under this
Section, shall be at the sole discretion of the Committee, or in the case of
Awards granted to Directors, of the Board, and such determinations shall be
conclusive and binding.
Section V. Beneficiary Designation; Death of Awardee
A. An Award recipient may file with the Committee a written designation of a
beneficiary or beneficiaries (subject to such limitations as to the classes and
number of beneficiaries and contingent beneficiaries as the Committee may from
time to time prescribe) to exercise, in the event of the death of the recipient,
an Option, Stock Appreciation Right or Phantom Stock Option, or to receive, in
such event, any Other Stock Awards. The Committee reserves the right to review
and approve beneficiary designations. A recipient may from time to time revoke
or change any such designation or beneficiary and any designation of beneficiary
under the Plan shall be controlling over any other disposition, testamentary or
otherwise. However, if the Committee shall be in doubt as to the right of any
such beneficiary to exercise any Option, Stock Appreciation Right or Phantom
Stock Option, or to receive any Other Stock Award, the Committee may determine
to recognize only an exercise by, or right to receive of, the legal
representative of the recipient, in which case the Company, the Committee and
the members thereof shall not be under any further liability to anyone.
B. Upon the death of an Award recipient, the following rules shall apply:
1. An Option, to the extent exercisable on the date of the recipient's death,
may be exercised at any time within three years after the recipient's death, but
not after the expiration of the term of the Option. The Option may be exercised
by the recipient's designated beneficiary or personal representative or the
person or persons entitled thereto by will or in accordance with the laws of
descent and distribution, or by the transferee of the Option in accordance with
the provisions of Section VI.A.
2. In the case of any Other Stock Award, any shares of Common Stock or cash
payable shall be determined as of the date of the recipient's death, in
accordance with the terms of the Award Agreement, and the Company shall issue
such shares of Common Stock or pay such cash to the recipient's designated
beneficiary or personal representative or the person or persons entitled thereto
by will or in accordance with the laws of descent and distribution.
Section VI. Other Governing Provisions
A. Transferability
Except as otherwise provided herein, no Award shall be transferable other than
by beneficiary designation, will or the laws of descent and distribution, and
any right granted under an Award may be exercised during the lifetime of the
holder thereof only by Award Recipient or by his/her guardian or legal
representative; provided, however, that an Award recipient may be permitted, in
the sole discretion of the Committee or its delegee, to transfer to a member of
such recipient's immediate family, family trust or family partnership as defined
by the Committee or its delegee, an Option granted pursuant to Section II
hereof, other than an Incentive Stock Option, subject to such terms and
conditions as the Committee or its delegee, in their sole discretion, shall
determine.
B. Rights as a Shareholder
A recipient of an Award shall, unless the terms of the Award Agreement provide
otherwise, have no rights as a shareholder, with respect to any Options or
shares of Common Stock which may be issued in connection with an Award, until
the issuance of a Common Stock certificate for such shares, and no adjustment
other than as stated herein shall be made for dividends or other rights for
which the record date is prior to the issuance of such Common Stock certificate.
In addition, with respect to Restricted Stock Awards, recipients shall have only
such rights as a shareholder as may be set forth in the terms of the Award
Agreement.
C. General Conditions of Awards
No Employee, Director or other person shall have any rights with respect to the
Plan, the shares of Common Stock reserved or in any Award, contingent or
otherwise, until an Award Agreement shall have been delivered to the recipient
and all of the terms, conditions and provisions of the Plan applicable to such
recipient shall have been met.
D. Reservation of Rights of Company
Neither the establishment of the Plan nor the granting of an Award shall confer
upon any Employee any right to continue in the employ of the Company or any
Affiliate or interfere in any way with the right of the Company or any Affiliate
to terminate such employment at any time. No Award shall be deemed to be salary
or compensation for the purpose of computing benefits under any employee
benefit, pension or retirement plans of the Company or any Affiliate, unless the
Committee shall determine otherwise.
E. Acceleration
The Committee, or, with respect to any Awards granted to Directors, the Board,
may, in its sole discretion, accelerate the vesting or date of exercise of any
Awards.
F. Effect of Certain Changes
In the event of any extraordinary dividend, stock split-up, stock dividend,
issuance of targeted stock, recapitalization, warrant or rights issuance, or
combination, exchange or reclassification with respect to the Common Stock or
any other class or series of common stock of the Company, or consolidation,
merger or sale of all, or substantially all, of the assets of the Company, the
Committee or its delegee shall cause such equitable adjustments as it deems
appropriate to be made to the shares reserved under Section I.D of the Plan and
the limits on Awards set forth in Section I.E.3 of the Plan, and the Committee
or Board shall cause such adjustments to be made to the terms of outstanding
Awards to reflect such event and preserve the value of such Awards. In the
event that the Committee or Board determines that any such event has a minimal
effect on the value of Awards, they may elect not to cause any such adjustments
to be made. In all events, the determination of the Committee or Board or their
delegee shall be conclusive. If any such adjustment would result in a
fractional share of Common Stock being issued or awarded under this Plan, such
fractional share shall be disregarded.
G. Withholding of Taxes
The Company shall deduct from any payment, or otherwise collect from the
recipient, any taxes required to be withheld by federal, state or local
governments in connection with any Award. The recipient may elect, subject to
approval by the Committee, to have shares of Common Stock withheld by the
Company in satisfaction of such taxes, or to deliver other shares of Common
Stock owned by the recipient in satisfaction of such taxes. With respect to
Corporate Officers, Directors or other recipients subject to Section 16(b) of
the Exchange Act, the Committee or, with respect to Awards granted to Directors,
the Board, may impose such other conditions on the recipient's election as it
deems necessary or appropriate in order to exempt such withholding from the
penalties set forth in said Section. The number of shares to be withheld or
delivered shall be calculated by reference to the Fair Market Value of the
Common Stock on the date that such taxes are determined.
H. No Warranty of Tax Effect
Except as may be contained in the terms of any Award Agreement, no opinion is
expressed nor warranties made as to the tax effects under federal, foreign,
state or local laws or regulations of any Award granted under the Plan.
I. Amendment of Plan
The Board may, from time to time, amend, suspend or terminate the Plan in whole
or in part, and if terminated, may reinstate any or all of the provisions of the
Plan, except that (i) no amendment, suspension or termination may apply to the
terms of any Award (contingent or otherwise) granted prior to the effective date
of such amendment, suspension or termination, in a manner which would reasonably
be considered to be adverse to the recipient, without the recipient's consent;
(ii) except as provided in Section VI.F., no amendment may be made to increase
the number of shares of Common Stock reserved under Section I.D of the Plan;
(iii) except as provided in Section VI.F., no amendment may be made to increase
the limitations set forth in Section 1.E.3 of the Plan, and (iv) no amendment
may withdraw the authority of the Committee to administer the Plan.
J. Construction of Plan
The place of administration of the Plan shall be in the State of Missouri and
the validity, construction, interpretation, administration and effect of the
Plan and of its rules and regulations, and rights relating to the Plan, shall be
determined solely in accordance with the laws of the State of Missouri, without
giving regard to the conflict of laws provisions thereof.
K. Unfunded Nature of Plan
The Plan, insofar as it provides for cash payments, shall be unfunded, and the
Company shall not be required to segregate any assets which may at any time be
awarded under the Plan. Any liability of the Company to any person with respect
to any Award under the Plan shall be based solely upon any contractual
obligations which may be created by the terms of any Award Agreement entered
into pursuant to the Plan. No such obligation of the Company shall be deemed to
be secured by any pledge of, or other encumbrance on, any property of the
Company.
L. Successors
All obligations of the Company under the Plan, with respect to any Awards
granted hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation or otherwise, of all or substantially all of the business
and/or assets of the Company.
Section VII. Effective Date and Term
The Plan shall be effective April 1, 2000 and shall continue in effect until
December 31, 2009, when it shall terminate. Upon termination, any balances in
the reserve established under Section I.D shall be cancelled, and no Awards
shall be granted under the Plan thereafter. The Plan shall continue in effect,
however, insofar as is necessary, to complete all of the Company's obligations
under outstanding Awards or to conclude the administration of the Plan.
EXHIBIT 5
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Energizer Holdings, Inc.
800 Chouteau
St. Louis, Missouri 63102
Re: Energizer Holdings, Inc. 2000 Incentive Stock Plan
Ladies and Gentlemen:
I am an attorney duly licensed to practice law in the State of Missouri.
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 April 14, 2000, by Energizer
Holdings, Inc., a Missouri corporation (the "Company"), pertaining to the
proposed issuance by the Company of up to 15,000,000 shares of the Company's
common stock, $.01 par value (the "Stock"), as provided in the Energizer
Holdings, Inc. Deferred Compensation Plan (the "Plan"), I 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 I have received from officers and
representatives of the Company. In delivering this opinion, I 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 me
as certified, photostatic or conformed copies, the authenticity of originals of
all such latter documents, and the correctness of statements submitted to me by
officers and representatives of the Company.
Based solely on the foregoing, I am 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 Stock to be issued by the Company pursuant to the Plan has been duly
authorized and, when issued by the Company in accordance with the Plan, will be
duly and validly issued and will be fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement. I 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 Stock in accordance with the Plan.
Very truly yours,
/s/ Harry L. Strachan, III
Harry L. Strachan, III
Vice President and General Counsel
<PAGE>
EXHIBIT 23
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CONSENT OF INDEPENDENT ACCOUNTANTS
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
April 14, 2000
