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 SAVINGS INVESTMENT 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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
PROPOSED
AMOUNT TO MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE(3) PRICE (3) FEE
Energizer Holdings, Inc.
Common Stock 5,000,000
.01 par value(1) shares $ 23.71875 $ 118,593,750 $ 31,308.75
============================ ========== ==================== ==================== =============
Participation Interests(2) -- -- -- --
============================ ========== ==================== ==================== =============
<FN>
(1) Includes one attached Common Stock Purchase Right per share.
(2) Pursuant to Rule 416(c), this Registration Statement also covers an indeterminate amount of
Plan interests to be offered and sold pursuant to the Plan.
(3) 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 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.
</TABLE>
ENERGIZER HOLDINGS, INC.
2000 SAVINGS INVESTMENT 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 8 hereof. The undersigned registrant
hereby undertakes to submit the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and will make all changes required by
the IRS in order to qualify the Plan.
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>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
- ---------
administrator of the Energizer Holdings, Inc. 2000 Savings Investment Plan 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.
2000 SAVINGS INVESTMENT PLAN
By: ENERGIZER HOLDINGS, INC.
Plan Administrator
By: /s/ J. Patrick Mulcahy
---------------------------
J. Patrick Mulcahy
Chief Executive Officer
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
Exhibit 4.1 Energizer Holdings, Inc. 2000 Savings Investment Plan
Exhibit 5 Opinion of Thompson Coburn LLP
Exhibit 23 Consent of Independent Certified Public Accountants
Energizer Holdings, Inc.
Savings Investment Plan
Energizer Holdings, Inc.
4/01/2000
<PAGE>
Table of Contents
Page
Recitals 1
ARTICLE I - Definitions 2
Section 1.01 - Accounts 2
--------
Section 1.02 - Administrative Committee 2
-------------------------
Section 1.03 - Affiliated Company 2
-------------------
Section 1.04 - After-Tax Supplemental Contributions 2
--------------------------------------
Section 1.05 - After-Tax Supplemental Investment Account 2
--------------------------------------------
Section 1.06 - Before-Tax Investment Account 2
-------------------------------
Section 1.07 - Before-Tax Matched Contributions 2
----------------------------------
Section 1.08 - Before-Tax Unmatched Contributions 2
------------------------------------
Section 1.09 - Beneficiary 2
-----------
Section 1.10 - Board of Directors 2
--------------------
Section 1.11 - Closing Price 3
--------------
Section 1.12 - Code 3
----
Section 1.13 - Common Stock 3
-------------
Section 1.14 - Commonly Controlled Entity 3
----------------------------
Section 1.15 - Company 3
-------
Section 1.16 - Company Matching Contribution Account 3
----------------------------------------
Section 1.17 - Company Matching Contributions 3
--------------------------------
Section 1.18 - Compensation 3
------------
Section 1.19 - Covered Service 4
----------------
Section 1.20 - Disability 4
----------
Section 1.21 - Effective Date 5
---------------
Section 1.22 - Eligible Employee 5
------------------
Section 1.23 - Eligible Spouse 5
----------------
Section 1.24 - Employee 5
--------
Section 1.25 - Employer 5
--------
Section 1.26 - Entry Date 5
-----------
Section 1.27 - Five-Percent (5%) Owner 5
-------------------------
Section 1.28 - Highly Compensated Employee 5
-----------------------------
Section 1.29 - Investment Committee 5
---------------------
Section 1.30 - Investment Fund or Funds 5
---------------------------
Section 1.31 - Leased Employee 5
----------------
Section 1.32 - Member 6
------
Section 1.33 - Non-Highly Compensated Employee 6
---------------------------------
Section 1.34 - Participating Unit 6
-------------------
Section 1.35 - Plan 6
----
Section 1.36 - Prior Plan 6
-----------
Section 1.37 - Plan Administrator 6
-------------------
Section 1.38 - Plan Year 6
----------
Section 1.39 - Profits 6
-------
Section 1.40 - Retirement 7
----------
Section 1.41 - Rollover Account 7
-----------------
Section 1.42 - Rollover Contribution 7
----------------------
Section 1.43 - Temporary Employee 7
-------------------
Section 1.44 - Termination of Employment 7
---------------------------
Section 1.45 - Trustee 7
-------
Section 1.46 - Trust Fund 7
-----------
Section 1.47 - Valuation Date 7
---------------
Section 1.48 - Withdrawal Valuation Date 7
---------------------------
ARTICLE II - Membership 8
Section 2.01 - Eligibility 8
-----------
Section 2.02 - Membership Application 8
-----------------------
Section 2.03 - Rehired Former Employee 8
-------------------------
ARTICLE III - Service 8
Section 3.01 - Absence in Military Service 8
------------------------------
Section 3.02 - Approved Leave of Absence 8
----------------------------
Section 3.03 - Family Medical Leave 8
----------------------
Section 3.04 - Period of Service 8
-------------------
Section 3.05 - Service Definitions 9
--------------------
ARTICLE IV - Contributions 9
Section 4.01 - Before-Tax Matched Contributions 9
----------------------------------
Section 4.02 - Company Matching Contributions 9
--------------------------------
Section 4.03 - Before-Tax Unmatched Contributions 10
------------------------------------
Section 4.04 - After-Tax Matched and Unmatched Supplemental
Contributions
------------------------------------------------ 10
Section 4.05 - Deferral Percentages 11
---------------------
Section 4.06 - Contribution Percentages 12
-------------------------
Section 4.07 - Change in Before-Tax Matched, Before-Tax Unmatched, and
After-Tax Supplemental Contributions 13
------------------------------------------------------
Section 4.08 - Suspension of Before-Tax Matched,
Before-Tax Unmatched, and After-Tax Supplemental
Contributions 14
--------------------------------------------------
---------------------------------
Section 4.09 - Limitation of Contributions 14
-----------------------------
ARTICLE V - Trust Fund 15
Section 5.01 - The Trust Agreement 15
---------------------
Section 5.02 - The Trustee 15
------------
Section 5.03 - Separate Investment Funds 15
---------------------------
Section 5.04 - Temporary Investment 15
---------------------
Section 5.05 - Investment Managers 15
--------------------
ARTICLE VI - ESOP Common Stock Fund 15
Section 6.01 - The ESOP Common Stock Fund 15
------------------------------
Section 6.02 - ESOP Common Stock Dividends 16
------------------------------
Section 6.03 - Withdrawals and Distributions 16
-------------------------------
Section 6.04 - Voting and Tendering 16
----------------------
Section 6.05 - Diversification Elections 17
--------------------------
ARTICLE VII - Other Investment Funds 17
Section 7.01 - Other Investment Funds 17
------------------------
Section 7.02 - Investment of Contributions 18
-----------------------------
Section 7.03 - Member Responsibility For Selection of Funds 19
-------------------------------------------------
Section 7.04 - Voting and Tendering 19
----------------------
ARTICLE VIII - Valuation of Assets and Members' Accounts 20
Section 8.01 - Valuation of Assets 20
---------------------
Section 8.02 - Valuation of Accounts 20
-----------------------
Section 8.03 - Statement of Accounts 20
-----------------------
Section 8.04 - Accounts in Units 20
-------------------
ARTICLE IX - Vesting of Contributions 20
Section 9.01 - Vesting of Before-Tax and After-Tax Supplemental
Investment Accounts 20
-----------------------------------------------------
Section 9.02 - Vesting of Company Contributions Account 20
--------------------------------------------
ARTICLE X - Distributions 21
Section 10.01 - General 21
-------
Section 10.02 - Methods of Distribution 21
-------------------------
Section 10.03 - Qualified Joint and Survivor Annuity 22
----------------------------------------
Section 10.04 - Election Not to Receive a Qualified Joint and
Survivor Annuity 23
--------------------------------------------------
Section 10.05 - Completion of Appropriate Forms 23
----------------------------------
Section 10.06 - Accounts of Former Employees 24
-------------------------------
Section 10.07 - Consent to Payment 24
--------------------
Section 10.08 - Latest Deferral of Payment 24
-----------------------------
Section 10.09 - Lost Payees 25
------------
Section 10.10 - Distribution of Annuity Contracts 25
------------------------------------
ARTICLE XI - Death Benefits 25
Section 11.01 - Death Benefits 25
---------------
Section 11.02 - Beneficiary Designation 25
------------------------
Section 11.03 - Pre-Retirement Survivor Annuity 26
---------------------------------
Section 11.04 - Payment of Benefit 26
--------------------
Section 11.05 - Latest Time for Payment 26
--------------------------
Section 11.06 - Payments in the Event of Death with No
Designated Survivor or of Incompetency 26
------------------------------------
Section 11.07 - Renunciation of Death Benefit 26
--------------------------------
Section 11.08 - Proof of Death and Right of Beneficiary or Other Person 27
-------------------------------------------------------
ARTICLE XII - Withdrawal Prior to Termination of Employment 27
Section 12.01 - Withdrawal of After-Tax Supplemental Contributions 27
-----------------------------------------------------
Section 12.02 - Hardship Withdrawal of Before-Tax Contributions
and/or Company Matching Contributions 27
----------------------------------------------
Section 12.03 - Age Fifty-Nine and One-Half (59-1/2) Withdrawal 28
----------------------------------------------------
Section 12.04 - Order of Withdrawals 28
----------------------
ARTICLE XIII - Forfeitures 29
Section 13.01 - Time of Forfeiture and Restoration 29
--------------------------------------
Section 13.02 - Disposition of Forfeitures 29
----------------------------
Section 13.03 - Effect of Withdrawal Under Article XII 29
-------------------------------------------
Section 13.04 - Parental Leave of Absence 29
----------------------------
ARTICLE XIV - Administration of Plan 29
Section 14.01 - Plan Administrator 29
-------------------
Section 14.02 - Administrative Committee 30
-------------------------
Section 14.03 - Investment Committee 30
---------------------
Section 14.04 - Authority and Duties of Various Fiduciaries 30
------------------------------------------------
Section 14.05 - Named Fiduciaries 31
------------------
Section 14.06 - Delegation 31
----------
Section 14.07 - Multiple Capacities 32
--------------------
ARTICLE XV - Amendments, Termination, Permanent Discontinuance of
Contributions, Merger or Consolidation 32
Section 15.01 - Amendments 32
----------
Section 15.02 - Termination or Permanent Discontinuance of Contributions 32
--------------------------------------------------------
Section 15.03 - Partial Termination 32
--------------------
Section 15.04 - Benefits in Case of Merger or Consolidation 32
-------------------------------------------------
ARTICLE XVI - Loans 32
Section 16.01 - Loans 32
-----
Section 16.02 - Interest Rates 33
---------------
Section 16.03 - Other Rules 33
------------
ARTICLE XVII - Miscellaneous 34
Section 17.01 - Benefits Payable from Trust Fund 34
------------------------------------
Section 17.02 - Elections 34
---------
Section 17.03 - No Right to Continued Employment 34
------------------------------------
Section 17.04 - Inalienability of Benefits and Interest 34
-------------------------------------------
Section 17.05 - Payments for Exclusive Benefits of Members 34
-----------------------------------------------
Section 17.06 - Missouri Law to Govern 35
-------------------------
Section 17.07 - No Guarantee 35
-------------
Section 17.08 - Address of Record 35
-------------------
Section 17.09 - Participating Units 35
--------------------
Section 17.10 - Headings 35
--------
Section 17.11 - Use of Masculine Terms 35
-------------------------
Section 17.12 - Payment of Expenses 35
---------------------
Section 17.13 - Rollover Contributions 36
-----------------------
ARTICLE XVIII - Claim Procedure 36
Section 18.01 - Initial Determination 36
----------------------
Section 18.02 - Review 36
------
ARTICLE XIX - Limitation on Contributions 37
Section 19.01 - Maximum Annual Additions 37
--------------------------
ARTICLE XX - Top-Heavy Provisions 39
Section 20.01 - Application of Top-Heavy Provisions 39
--------------------------------------
Section 20.02 - Definitions 40
-----------
Section 20.03 - Minimum Contribution 41
---------------------
Section 20.04 - Limit on Annual Additions: Combined Plan Limit 41
----------------------------------------------------
<PAGE>
ENERGIZER HOLDINGS, INC. SAVINGS INVESTMENT PLAN
Whereas, effective April 1, 2000, Ralston Purina Company ("Ralston"), a Missouri
- -------
corporation, spun off its battery and lighting products business to the
shareholders of Ralston common stock, in a spin-off qualifying under Code
Section 355 (the "Spin-off");
Whereas, in accordance with Section 7.04 of the Agreement and Plan of
- -------
Reorganization dated as of April 1, 2000, (the "Agreement") between Ralston and
Energizer Holdings, Inc. ("Energizer" or "the Company"), a Missouri corporation,
the Ralston Savings Investment Plan (the "Ralston SIP" or "Prior Plan"), a
qualified plan under Code Section 401(a) and (k), will be split into two plans,
the Ralston SIP and the Energizer Holdings, Inc. Savings Investment Plan (the
"Energizer SIP"), and such split shall constitute a "spin-off" of the Ralston
SIP, as defined under Code Section 414(l), and the regulations thereto;
Whereas, the spin-off of the Ralston SIP is necessary to effectuate the
- -------
Spin-off;
Whereas,to effectuate the spin-off of the Ralston SIP, the total account
- --------
balances of all participants in the Ralston SIP on March 31, 2000, who are
Energizer Individuals, as defined in the Agreement, will be transferred by the
Trustee of the Ralston SIP to the Trustee of the Energizer SIP, effective as
soon as practicable after March 31, 2000, subject to certain conditions set
forth in the Agreement; and
Whereas, the Energizer Board of Directors has authorized Energizer to adopt the
- -------
Energizer SIP, as set forth below.
Now, therefore, the Energizer Holdings, Inc. Savings Investment Plan is hereby
adopted effective April 1, 2000.
<PAGE>
ENERGIZER HOLDINGS, INC. SAVINGS INVESTMENT PLAN
ARTICLE I - Definitions
Section 1.01 - Accounts
--------
Accounts shall mean, with respect to any Member, his Before-Tax and After-Tax
Supplemental Investment Accounts, his Company Matching Contribution Account, and
his Rollover Account.
Section 1.02 - Administrative Committee
-------------------------
Administrative Committee shall mean the Energizer Plans Administrative Committee
which has the responsibility and authority to manage and administer the Plan.
Section 1.03 - Affiliated Company
-------------------
Affiliated Company shall mean (a) any company more than fifty percent (50%) of
the voting stock of which is directly or indirectly owned by Energizer Holdings,
Inc. or by any successor, and (b) any Commonly Controlled Entity; provided,
however, that a company shall not be an Affiliated Company unless Common Stock
would be employer securities within the meaning of Code Section 409(l) with
respect to such company.
Section 1.04 - After-Tax Supplemental Contributions
--------------------------------------
After-Tax Supplemental Contributions shall mean the contributions of a Member
which are credited to his After-
Tax Supplemental Investment Account in accordance with Section 4.04.
Section 1.05 - After-Tax Supplemental Investment Account
--------------------------------------------
After-Tax Supplemental Investment Account shall mean that portion of the Trust
Fund which, with respect to any Member, is attributable to his own After-Tax
Matched and Unmatched Supplemental Contributions, and any investment earnings
and gains or losses thereon.
Section 1.06 - Before-Tax Investment Account
-------------------------------
Before-Tax Investment Account shall mean that portion of the Trust Fund which,
with respect to any Member, is attributable to Before-Tax Matched and Before-Tax
Unmatched Contributions under the Plan and any investment earnings and gains or
losses thereon.
Section 1.07 - Before-Tax Matched Contributions
----------------------------------
Before-Tax Matched Contributions shall mean the amount remitted by the Employer
in accordance with Section 4.01.
Section 1.08 - Before-Tax Unmatched Contributions
------------------------------------
Before-Tax Unmatched Contributions shall mean the amount remitted by the
Employer in accordance with Section 4.03.
Section 1.09 - Beneficiary
-----------
Beneficiary shall mean any person or persons designated in accordance with
Section 11.02.
Section 1.10 - Board of Directors
--------------------
Board of Directors shall mean the Board of Directors of Energizer Holdings, Inc.
and any committee of directors authorized by such Board to act in its behalf
with reference to the Plan.
Section 1.11 - Closing Price
--------------
Closing Price shall mean the price assigned to a transaction order on a
Valuation Date. Generally, the Closing Price is determined by the Trustee on
the day the order is placed. However, if, in the best judgment of the
Investment Committee, it would not be in the best interests of Plan Participants
to determine the Closing Price on the day the order is placed, due to unusual
circumstances, Investment Committee may, in its sole discretion, complete the
order in such manner as the members thereof deem prudent. If a transaction is
completed over several days, Participants who placed such orders on the original
date will not be permitted to effect any other transactions, other than making
contributions and loan repayments, until a Closing Price for the original
Valuation Date is established. The Closing Price assigned to such orders will
reflect the average price of the transactions necessary to complete the orders.
Section 1.12 - Code
----
Code shall mean the Internal Revenue Code of 1986, as amended from time to time.
Reference to any section or subsection of the Code includes reference to any
comparable or succeeding provisions of any legislation which amends, supplements
or replaces such section or subsection.
Section 1.13 - Common Stock
-------------
Common Stock shall mean the common stock of Energizer Holdings, Inc. and shall
include any other authorized class or series of Common Stock outstanding upon
the reclassification of any of such classes or series of Common Stock,
including, without limitation, any stock split-up, stock dividend, creation of
targeted stock or other distributions of stock in respect of or any reverse
stock split-up, or recapitalization of the Company, or any merger or
consolidation of the Company with any Affiliated Company.
Section 1.14 - Commonly Controlled Entity
----------------------------
Commonly Controlled Entity shall mean (1) any corporation which is a member of
the same controlled group of corporations within the meaning of Code Section
414(b) as Energizer Holdings, Inc., (2) any trade or business (whether or not
incorporated) which is under common control with Energizer Holdings, Inc. within
the meaning of Code Section 414(c), and (3) any organization which is a member
of an affiliated service group within the meaning of Code Section 414(m) of
which a Company is also a member, and (4) any entity which is required to be
aggregated under Code Section 414(o).
Section 1.15 - Company
-------
Company shall mean Energizer Holdings, Inc., a Missouri corporation, and any
Affiliated Company.
Section 1.16 - Company Matching Contribution Account
----------------------------------------
Company Matching Contribution Account shall mean that portion of the Trust Fund
which, with respect to any Member, is attributable to any contributions made on
the Member's behalf by the Company in accordance with Section 4.02 and any
investment earnings and gains or losses thereon.
Section 1.17 - Company Matching Contributions
--------------------------------
Company Matching Contributions shall mean the amount contributed by the Employer
in accordance with Section 4.02(b).
Section 1.18 - Compensation
------------
Compensation shall mean the basic compensation and such other forms of cash
compensation paid for employment in Covered Service, as determined by the Plan
Administrator including but not limited to, regular cash bonuses (unless the
Member elects to defer such bonus under a Company sponsored deferred
compensation plan); payments made under a Code Section 125 Cafeteria Plan;
payments received by Members as a result of non-occupational sicknesses or
injuries as wage replacement; and payments received by a Member under any type
of Company sponsored voluntary supplementation of worker's compensation
payments. Compensation shall not include employer paid reimbursements and
allowances, or non-recurring awards. Notwithstanding the foregoing, Compensation
for purposes of the Plan shall not exceed the dollar limit provided under Code
401(a)(17), or such increases as the Secretary of Treasury may determine.
Section 1.19 - Covered Service
----------------
Covered Service means employment of an Employee by an Employer in a
Participating Unit, as a regular Employee for which the Employee is paid from a
United States dollar payroll maintained in the United States and for which the
Employee receives a regular and stated compensation or retainer and an Employee,
while designated as an Internationally Assigned Employee in a sales,
administrative, clerical, or production capacity for which the Employee receives
a regular stated compensation or retainer which is subject to taxes imposed by
the Federal Insurance Contributions Act; provided that the following service
shall not be Covered Service:
(a) Employment excepted by the Board of Directors, or by the Plan
Administrator pursuant to authority delegated to it by the Board of Directors,
on a uniform and nondiscriminatory basis with respect to persons similarly
situated; and
(b) Employment subject to a collective bargaining agreement the terms
and conditions of which do not make this Plan applicable to it; and
(c) Employment as a Leased Employee; and
(d) Employment as a Temporary Employee; and
(e) Employment as a fee-for-service worker or independent contractor or in a
similar capacity (rather than in the capacity of an Employee), regardless
of such individual's status under common law, including any such individual who
is or has been determined by a third party (including, without limitation, a
government agency or board or court or arbitrator) to be an Employee of the
Company, or any Affiliated Company for any purpose, including, for purposes of
any employee benefit plan of the Company or any Affiliated Company (including
this Plan) or for purposes of federal, state, or local tax withholding,
employment tax, or employment law.
For all purposes under this Plan, service with Ralston Purina Company or
any Ralston Affiliated Company, as defined in the Ralston SIP (the "Ralston
Group"), shall constitute Covered Service for all Employees who were employees
of any member of the Ralston Group, including Energizer or any Energizer
Affiliated Company, on March 31, 2000, and who are Employees of Energizer or any
Energizer Affiliated Company on March 31, 2001 and during the period April 1,
2000 through March 31, 2001, are continuously employed by the Ralston Group,
and/or Energizer or any Affiliated Company.
Section 1.20 - Disability
----------
Disability shall mean, (a) being disabled within the meaning of any pension plan
or long term disability plan of an Employer under which a Member is entitled to
receive benefits and which results in Termination of Employment, or (b) if (a)
is not applicable, as provided in Code Section 72(m)(7), being unable to engage
in any substantial gainful activity by reason of any medically determined
physical or mental impairment which can be expected to result in death or to be
of a long continued and indefinite duration which results in a Termination of
Employment.
Section 1.21 - Effective Date
---------------
Effective Date shall mean April 1, 2000, except as otherwise provided herein, in
respect of Energizer Holdings, Inc., and the date as of which the Plan is
adopted by an Affiliated Company, with respect to such company.
Section 1.22 - Eligible Employee
------------------
Eligible Employee shall mean an Employee who has satisfied the eligibility
requirement of Section 2.01 and is employed in Covered Service.
Section 1.23 - Eligible Spouse
----------------
Eligible Spouse shall mean the person to whom a Member is lawfully married at
the time benefit payments to the Member from this Plan commence, or in the case
of a Member who dies before such time, the person to whom the Member is lawfully
married on the date of death of the Member.
Section 1.24 - Employee
--------
Employee shall mean any person employed by the Company, including a Leased
Employee.
Section 1.25 - Employer
--------
Employer shall mean Energizer Holdings, Inc. or any Affiliated Company by whom
the Employee is employed that contributes to the Plan for the benefit of its
employees with the approval of the Plan Administrator. Any such Company that
contributes to the Plan shall thereby agree to all of the terms and conditions
of the Plan.
Section 1.26 - Entry Date
-----------
Entry Date, with respect to an Eligible Employee who: (i) on March 31, 2000 is
a participant in the Ralston SIP; (ii) on April 1, 2000 is employed in Covered
Service; and (iii) whose Entry Date under the Ralston Purina Savings Investment
Plan is a date on or before March 31, 2000, shall mean the Entry Date as
determined under the Ralston Purina Company Savings Investment Plan. For all
other Eligible Employees, the Entry Date shall mean the first day of the second
month immediately following his or her Employment Commencement Date.
Section 1.27 - Five-Percent (5%) Owner
-------------------------
Five-Percent (5%) Owner shall mean an Employee who is a five-percent (5%) owner
as defined in Code Section 416(i)(1)(B)(i).
Section 1.28 - Highly Compensated Employee
-----------------------------
Highly Compensated Employee shall mean any Employee who is a highly-compensated
employee as defined in Section 414(q) of the Code and regulations thereunder.
Section 1.29 - Investment Committee
---------------------
Investment Committee shall mean the Energizer Plans Investment Committee which
has the responsibility and authority to control and manage the Trust Fund.
Section 1.30 - Investment Fund or Funds
---------------------------
Investment Fund or Funds shall mean the separate funds established within the
Trust in accordance with Article VII.
Section 1.31 - Leased Employee
----------------
Leased Employee shall mean a person who provides services to the Company and--
(1) such services are provided pursuant to an agreement (written
or oral) between the Company, and any other person ("leasing organization"),
(2) such person has performed such services for the Company on a
substantially full-time basis for a period of at least one year, and
(3) such services are performed under primary direction or control
by the recipient for all Plan years beginning after December 31, 1996.
A person shall not be deemed a Leased Employee if he is covered by a plan
maintained by a leasing organization which is a money purchase pension plan with
a non-integrated employer contribution rate of at least ten percent (10%) of
compensation, and provides for immediate participation and for full and
immediate vesting provided that Leased Employees constitute less than twenty
percent (20%) of the Company's Non-Highly Compensated Employees.
Section 1.32 - Member
------
Member shall mean any person included in the membership of the Plan as provided
in Article II.
Section 1.33 - Non-Highly Compensated Employee
---------------------------------
Non-Highly Compensated Employee shall mean any Employee who is neither a Highly
Compensated Employee nor a family member of a Highly Compensated Employee, as
defined in Section 414(q) of the Code and regulations thereunder.
Section 1.34 - Participating Unit
-------------------
Participating Unit shall mean Energizer Holdings, Inc. or any subsidiary of
Energizer Holdings, Inc. that contributes to the Plan for the benefit of its
Employees with the approval of the Plan Administrator, and any unit of Employees
of the Company or an Affiliated Company authorized to participate in the Plan in
accordance with Section 17.09.
Section 1.35 - Plan
----
Plan shall mean the Energizer Holdings, Inc. Savings Investment Plan, as
described herein or as hereafter amended.
Section 1.36 - Prior Plan
-----------
Prior Plan shall mean the Ralston Purina Company Savings Investment Plan as in
effect on January 1, 1988.
Section 1.37 - Plan Administrator
-------------------
Plan Administrator shall mean Energizer Holdings, Inc
Section 1.38 - Plan Year
----------
Plan Year shall mean the calendar year.
Section 1.39 - Profits
-------
Profits shall mean both the accumulated earnings and profits and current net
taxable income of the Company attributable to the Energizer Power Systems
division (EPS), before deduction of federal, state, and local income taxes and
before any contributions made by the Company to this or any other employee
benefit plan maintained by the Company, on behalf of employees of EPS, as
determined by its independent public accountants in accordance with generally
accepted accounting principles.
Section 1.40 - Retirement
----------
Retirement shall mean early or normal retirement under any other retirement plan
of the Company, provided such retirement results in the Member's Termination of
Employment.
Section 1.41 - Rollover Account
-----------------
Rollover Account shall mean that portion of the Trust Fund that, with respect to
any Employee, is attributable to Rollover Contributions to the Trust by that
Employee under Section 17.13 of the Plan.
Section 1.42 - Rollover Contribution
----------------------
Rollover Contribution shall mean that portion of the Trust Fund which, with
respect to any Employee, is attributable to Rollover Contributions under Section
17.13 under the Plan, and any investment earnings and gains or losses thereon.
Section 1.43 - Temporary Employee
-------------------
Temporary Employee shall mean an Employee who is hired (i) to complete a special
project of limited duration, or (ii) to fill the vacancy of an Employee who is
on a leave of absence.
Section 1.44 - Termination of Employment
---------------------------
Termination of Employment shall mean separation from the employment of the
Company for any reason, including, but not limited to, Retirement, death,
Disability, resignation or dismissal by the Company; provided, however, that a
transfer of employment between Energizer Holdings, Inc. and an Affiliated
Company or between Affiliated Companies shall not be deemed to be "Termination
of Employment." Notwithstanding the foregoing, for purposes hereunder, an
Employee who has been placed on inactive status for a twelve (12) consecutive
month period shall be treated as having incurred a termination of Employment;
provided, however, if a definite date has been established at which time the
Employee is expected to return to Covered Service, then the person shall not be
deemed to have incurred a "Termination of Employment". With respect to any
leave of absence or any period of service in the Armed Forces of the United
States ("Armed Forces"), Article III shall govern.
Section 1.45 - Trustee
-------
Trustee shall mean a trustee or trustees at any time acting as such under a
trust agreement or agreements established for purposes of this Plan.
Section 1.46 - Trust Fund
-----------
Trust Fund shall mean the cash and other properties arising from contributions
made in accordance with the provisions of this Plan.
Section 1.47 - Valuation Date
---------------
Valuation Date shall mean the date reflecting the effective date on which a
transaction was implemented at the Closing Price established for that date.
Section 1.48 - Withdrawal Valuation Date
---------------------------
Withdrawal Valuation Date shall mean, with respect to a Member, the Valuation
Date coinciding with, or immediately following, the date on which his request
for a withdrawal under the Plan is effected by the Plan Administrator.
ARTICLE II - Membership
Section 2.01 - Eligibility
-----------
An Employee shall be eligible for membership in the Plan on any Entry Date on
which the Employee is employed in Covered Service.
Section 2.02 - Membership Application
-----------------------
An Eligible Employee may become a Member on an Entry Date by completing and
submitting to the Plan Administrator in a timely manner an application form
supplied by the Plan Administrator on which he designates the percentage of his
Compensation he wishes to be contributed to this Plan by means of deductions
from his Compensation, he chooses one or more Investment Fund(s), and he names a
Beneficiary. Participation in the Plan by an Eligible Employee is voluntary.
Section 2.03 - Rehired Former Employee
-------------------------
If a former Employee formerly eligible for membership under Section 2.01 above
is rehired after a Severance from Service Date as defined in Section 3.05(d),
the former Employee shall again be eligible to become a Member of the Plan on
the date of his re-employment as an Eligible Employee.
ARTICLE III - Service
Section 3.01 - Absence in Military Service
------------------------------
If an Employee shall have been absent from the service of the Company because of
service in the Armed Forces of the United States and if he shall have returned
to the service of the Company within the period during which re-employment
rights are extended by law, such absence shall not count as a period of
severance. Any period of such absence which is not otherwise included in his
Period of Service shall be so included. Notwithstanding any provision of this
plan to the contrary, contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with Section 414(u) of
the Internal Revenue Code.
Section 3.02 - Approved Leave of Absence
----------------------------
A period during which an Employee is on a leave of absence approved by the
Company not otherwise included in a Period of Service shall, if the Plan
Administrator so determines, be so included under rules established by the Plan
Administrator uniformly applicable to all Employees similarly situated.
Section 3.03 - Family Medical Leave
----------------------
If an Employee is absent from the service of the Company because of a leave of
absence which qualifies as a leave under the Family Medical Leave Act, such
absence shall be included in the Period of Service.
Section 3.04 - Period of Service
-------------------
The Period of Service of an Employee means the period of Covered Service
beginning on an Employment Commencement Date of an Employee and ending on the
Severance from Service Date of the Employee that next follows such an Employment
Commencement Date. Nonconsecutive Periods of Service shall be aggregated and
three hundred sixty-five (365) days of service shall equal a whole year of
service. If an Employee performs an Hour of Service within twelve (12) months
of a Severance from Service Date, the Employee's Period of Service shall include
the time which elapsed between the date of such a Severance from Service Date
and such date of re-employment.
Additionally, service with Gates Energy Products, Inc., for all employees who
were employed by Gates Energy Products, Inc. on August 27, 1993, who became
Employees of Eveready Battery Company, Inc. on August 28, 1993 shall be included
in an Employee's Period of Service.
Section 3.05 - Service Definitions
--------------------
(a) "Employment Commencement Date" shall mean the date the
Employee first performs an Hour of Service; provided that, if an Employee incurs
a Break in Service of at least one year, the Employment Commencement Date of the
Employee shall be the first day on which the Employee performs an Hour of
Service after incurring such a Break in Service.
(b) "Break in Service" means the period following a Severance from
Service Date extending until the Employee again completes an Hour of Service.
(c) "Hour of Service" means an hour for which an Employee is paid,
or entitled to payment, for the performance of duties for the Company.
(d) "Severance from Service Date" means the earlier of (1) the
date the Employee retires, dies, resigns or is discharged, or (2) the first
anniversary of the date on which the Employee begins a period of absence, with
or without pay, with the Company, subject, however, to the provisions of Section
1.44.
ARTICLE IV - Contributions
Section 4.01 - Before-Tax Matched Contributions
----------------------------------
(a) (i) Each Member may elect to reduce his Compensation in any
amount from one percent (1%) to six percent (6%) [in one percent (1%)
increments] of his Compensation for each payroll period subject to the
provisions set forth in Sections 4.01(b), 4.05, 4.09, and Article XIX, and his
Employer shall remit to the Plan on his behalf Before-Tax Matched Contributions
equal to the amount of the reduction in his Compensation as soon as practicable
after the end of the payroll period. Such contribution shall in no event be
made later than ninety (90) days after the end of such payroll period.
(b) Notwithstanding the foregoing, the Employer shall not remit to
the Plan any Before-Tax Matched Contributions on behalf of any Member who
receives a hardship withdrawal of his Before-Tax Contribution Account or his
Company Matching Contribution Account, in accordance with Section 12.02, during
the twelve-month period immediately following such withdrawal.
Section 4.02 - Company Matching Contributions
--------------------------------
(a) Notwithstanding anything to the contrary in Section 4.01(a) or
this Section, a Member shall not be entitled to a Company Matching Contribution
until the earlier of (I) the one-year anniversary of his Employment Commencement
Date or (ii) January 1, 2001.
(b) Company Matching Contributions. The Company shall contribute
--------------------------------
to the Plan as of each payroll period an amount equal to fifty percent (50%) of
the aggregate Before-Tax Matched Contributions for such period.
(c) In the event that the Commissioner of Internal Revenue, on
timely application made after the adoption of the Plan, determines that the Plan
and the implementing trust do not qualify for tax-exempt status, or refuses, in
writing, to issue a favorable determination with respect to the Plan and such
trust, the Employer contributions made on or after the date on which such
determination or refusal is applicable shall be returned to the Employer without
interest. In the event that an Employer contribution to the Plan is made by a
mistake of fact or all or part of the Employer's deductions under Code Section
404 for con-tributions to the Plan are disallowed by the Internal Revenue
Service, the portion of the contributions attributable to such mistake of fact
or to which such disallowance applies shall be returned to the Employer without
interest. Any such return shall be made within one year after the making of
such contribution by mistake of fact or the denial of qualification or
disallowance of deductions, as the case may be.
Section 4.03 - Before-Tax Unmatched Contributions
------------------------------------
(a) A Member who has elected the maximum Before-Tax Matched
Contribution rate of six percent (6%) may elect to further reduce his
Compensation by an additional one percent (1%) to six percent (6%) [in one
percent (1%) increments] of his Compensation for each payroll period, subject to
the provisions set forth in Sections 4.03(b), 4.05, 4.09, and Article XIX, and
his Employer shall remit to the Plan on his behalf Before-Tax Unmatched
Contributions equal to the amount of the reduction in his Compensation as soon
as practicable after the end of the payroll period. Such contribution shall in
no event be made later than ninety (90) days after the end of such payroll
period.
(b) Notwithstanding the foregoing, the Employer shall not remit to
the Plan any Before Tax Unmatched Contributions on behalf of any Member who
receives a hardship withdrawal of his Tax Contribution Account or his Company
Matching Contribution Account, in accordance with Section 12.02, during the
twelve-month period immediately following such withdrawal.
Section 4.04 - After-Tax Matched and Unmatched Supplemental Contributions
--------------------------------------------------------------
(a) A Member may (i) elect to make After-Tax Matched Supplemental
Contributions by authorizing payroll deductions of one percent (1%) of his
Compensation, and (ii) elect to make After-Tax Unmatched Supplemental
Contributions by authorizing payroll deductions of one percent (1%) to
twenty-one percent (21%) [in one percent (1%) increments] of his Compensation,
which Contributions shall be paid to the Trustee as soon as practicable after
the end of the month in which the applicable payroll period ends, but in no
event later than ninety (90) days after the end of such payroll period. A
Member's election of After-Tax Supplemental Contributions may be made in
addition to any Before-Tax Matched or Before-Tax Unmatched Contributions elected
by the Member, or may be made in lieu of such other contributions, subject to
the provisions set forth in Section 4.06 and Article XIX.
The Plan Administrator may implement rules limiting the After-Tax
Supplemental Contributions which may be made on behalf of Highly Compensated
Employees so that these limits are satisfied.
(b) Notwithstanding the foregoing, a Member may not elect to make After-Tax
Supplemental Contributions during the twelve-month period immediately following
the distribution of any hardship withdrawal of his Before-Tax Contribution
Account or his Company Matching Contribution Account, in accordance with Section
12.02.
Section 4.05 - Deferral Percentages
---------------------
(a) The actual deferral percentage for the Highly Compensated
Employees shall satisfy at least one of the following tests:
(i) The actual deferral percentage for the eligible
Highly Compensated Employees for the Plan Year does not exceed the actual
deferred percentage for the eligible Non-Highly Compensated Employees for the
Plan Year, multiplied by 1.25; or
(ii) The actual deferral percentage for the eligible
Highly Compensated Employees for the Plan Year does not exceed the actual
deferral percentage for the eligible Non-Highly Compensated Employees for the
Plan Year, multiplied by 2.0; provided, however, that the actual deferral
percentage for the eligible Highly Compensated Employees may not exceed the
actual deferral percentage for the eligible Non-Highly Compensated Employees by
more than two percentage points.
(b) (1) The actual deferral percentage with respect to
Before-Tax Matched Contributions for a specified group of Employees for a Plan
Year shall be the average of the ratios (calculated separately for each Employee
in such group) of:
(i) The amount of Before-Tax Matched Contributions
actually paid to the Plan on behalf of each such Employee for such Plan Year, to
(ii) The Employee's compensation (within the meaning of
Code Section 414(s)) for such Plan Year.
(b) (2) The actual deferral percentage with respect to
Before-Tax Unmatched Contributions for a specified group of Employees for a Plan
Year shall be the average of the ratios (calculated separately for each Employee
in such group) of:
(i) The amount of Before-Tax Unmatched Contributions
actually paid to the Plan on behalf of each such Employee for such Plan Year, to
(ii) The Employee's compensation (within the meaning of
Code Section 414(s)) for such Plan Year.
(b) (3) In each case referred to in Sections (b)(1) and
(b)(2), the actual deferral percentage test described in Section 4.05(a) shall
be computed separately for each controlled group [determined in accordance with
Code Sections 414(b), (c), (m), (n), and (o)] whose Employees participate in the
Plan.
(c) In making the deferral percentage calculations set forth
above, the Plan Administrator, as permitted by law, may, but is not required to,
take into account other contributions made by the Company on behalf of Eligible
Employees; provided that such other contributions must be one hundred percent
(100%) vested and subject to the withdrawal restrictions applicable to qualified
non-elective contributions [as defined in Code Section 401(m)].
(d) If the actual deferral percentage of eligible Highly
Compensated Employees exceeds the amounts allowed under Paragraphs (a) and (b)
above, the excess Before-Tax Contributions (as determined below) shall be
distributed to the Members as soon as practicable (but in no event later than
the last day of the next succeeding Plan Year). Any such distribution shall
include income and loss allocated to the excess in accordance with Reg. Section
1.401(k) - 1(f)(4).
(e) The amount of excess Before-Tax Contributions to be so
distributed to a Highly Compensated Employee shall equal:
(i) The total Before-Tax Matched and Before-Tax Unmatched
Contributions specified in clause (i) of Section 4.05(b)(1) or (b)(2), as the
case may be, for such employee, less
(ii) The reduced deferral dollar amount (determined below)
for such employee with respect to Before-Tax Matched or Before-Tax Unmatched
Contributions, as the case may be.
(f) The reduced deferral dollar amount for each Highly Compensated
Employee shall be determined by first reducing the Before-Tax Unmatched
Contributions, and then the Before-Tax Matched Contributions, as necessary, of
the Highly Compensated Employee with the highest actual deferral dollar amount
of Before-Tax Contributions, to whichever deferral dollar amount is higher: (i)
the deferral dollar amount which enables the highly compensated group to satisfy
one of the tests of paragraph (a)(i), or (ii) the deferral dollar amount that is
equal to that of the Highly Compensated Employee with the next highest actual
deferral dollar amount.
The above process shall be repeated until the highly compensated group
satisfies one of the tests set forth in paragraph (a).
(g) The Plan Administrator may implement rules limiting the
Before-Tax Matched and Unmatched Contributions which may be made on behalf of
some or all Highly Compensated Employees so that the tests set forth in Section
4.05 are satisfied.
Section 4.06 - Contribution Percentages
-------------------------
(a) The actual contribution percentage for the Highly Compensated
Employees, for each Plan Year, shall not exceed the greater of (i) the actual
contribution percentage for eligible Non-Highly Compensated Employees for the
Plan Year multiplied by 1.25, or (ii) the lesser of (A) two hundred percent
(200%) of the actual contribution percentage of the eligible Non-Highly
Compensated Employees, or (B) the actual contribution percentage of the eligible
Non-Highly Compensated Employees, plus two (2) percentage points.
(b) The actual contribution percentage for a specified group of
employees shall be the average of the ratios (calculated separately for each
Employee in such group) of:
(i) The sum of the following which are actually paid on
behalf of such Employee for such Plan Year,
(A) Company Matching Contributions
(B) After-Tax Supplemental Contributions, and
(C) Any Qualified Non-Elective Contributions [as defined in Section
401(m)(4)(C) of the Code],
(ii) The Employee's compensation (within the meaning of Code
Section 414(s)) for such Plan Year.
(c) In making the contribution percentage calculations set forth
above, the Plan Administrator, as permitted by law, may, but is not required to,
take into account other contributions made by the Company on behalf of Eligible
Employees.
(d) If the actual contribution percentage of Highly Compensated
Employees exceeds the amounts allowed under paragraph (a) above, the excess
contributions (as determined below) shall be distributed to the Members as soon
as practicable (but in no event later than the last day of the next succeeding
Plan Year). Any such distribution shall include income and loss allocated to
the excess in accordance with Reg. Section 1.401(m)-1(e)(3).
(e) The amount of excess contributions to be so distributed to a
Highly Compensated Employee shall equal
(i) The total contributions specified in clause (i) of
Section 4.06(b), less
(ii) The reduced contribution dollar amount (determined
below) for such employee.
(f) The reduced contribution amount for each Highly Compensated
Employee shall be determined by reducing the actual contribution amount of the
Highly Compensated Employee with the highest actual contribution dollar amount
to whichever of the following amounts is higher:
(i) The amount which enables the highly compensated group to
satisfy one of the tests of paragraph (a)(i); or
(ii) The amount that is equal to that of the Highly
Compensated Employee with the next highest actual contribution amount.
The above process shall be repeated until the highly compensated
group satisfies one of the tests set forth in paragraph (a).
(g) The multiple use of the alternative non-discrimination tests
set forth in Section 4.05(a)(ii) and Section 4.06(a)(ii) shall be limited as
prescribed by law. If restrictions on such multiple use apply, the Plan
Administrator shall designate either the actual deferral percentages or the
actual contribution percentages of Highly Compensated Employees to be reduced,
and shall reduce such percentages in the manner described above, until the
multiple use limitations are no longer exceeded.
(h) The Plan Administrator may implement rules limiting the
After-Tax Supplemental Contributions which may be made by some or all Highly
Compensated Employees, so that the test set forth in Section 4.06(a) is
satisfied.
(i) For purposes of determining the actual contribution percentage
of a Member who is either a five-percent (5%) owner or one of the ten (10) most
highly-paid, Highly Compensated Employees, the Company Matching Contributions,
After-Tax Supplemental Contributions, qualified non-elective contributions,
other matching contributions, and Compensation of such Member shall include the
Company Matching Contributions, After-Tax Supplemental Contributions, qualified
non-elective contributions, other matching contributions, and Compensation of
family members. Family members of Members who are either five-percent (5%)
owners or one of the ten (10) most highly-paid, Highly Compensated Employees
shall be disregarded as separate employees in determining the actual
contribution percentages for both Members who are Highly Compensated Employees
and for Members who are Non-Highly-Compensated Employees.
Section 4.07 - Change in Before-Tax Matched, Before-Tax Unmatched, and After-Tax
-----------------------------------------------------------------
Supplemental Contributions
- ---------------------------
Subject to the provisions of Sections 4.01, 4.03, and 4.04, a Member may change
the election permitted by Sections 4.01, 4.03 and 4.04 by giving at least
fifteen (15) days' prior written notice to the Plan Administrator or such
shorter period as the Plan Administrator or its delegatee may approve. Such
changed election shall become effective no later than the first day of the first
month commencing on or after the expiration of the notice period. In addition,
where Before-Tax Matched, Before-Tax Unmatched, or After-Tax Supplemental
Contributions by payroll deduction are or may be prohibited by law, in the
opinion of counsel to the Company, a Member, upon approval by the Plan
Administrator, may make contributions directly to the Trustee for each payroll
period by a method satisfactory to the Plan Administrator as long as such
deposits are timely made on the same schedule as payroll deductions. The
Trustee shall not accept direct contributions not timely made by a Member.
Section 4.08 - Suspension of Before-Tax Matched, Before-Tax Unmatched, and
--------------------------------------------------------------
After-Tax Supplemental Contributions
---------------------------------
(a) A Member may cause the suspension of Before-Tax Matched,
Before-Tax Unmatched, and/or After-Tax Supplemental Contributions on his behalf
at any time by giving at least fifteen (15) days' prior written notice to the
Plan Administrator, or such shorter period as the Plan Administrator or its
delegatee may approve, in advance of the date on which such a suspension shall
become effective. The suspension shall become effective as soon as practicable
after notification is received. During such period of suspension of Before-Tax
Matched Contributions no Company Matching Contributions on behalf of such a
Member shall be made by the Company.
(b) A Member who has caused the suspension of Before-Tax Matched,
Before-Tax Unmatched, and/or After-Tax Supplemental Contributions may have them
resumed in accordance with Sections 4.01, 4.03 and 4.04 by notifying the Plan
Administrator in writing at least fifteen (15) days in advance of the date on
which contributions are resumed, or such shorter period as the Plan
Administrator or its delegatee may approve. Contributions shall resume on the
first day of the first month commencing immediately after the expiration of the
fifteen (15) day notice period.
(c) A Member for whom contributions under Sections 4.01, 4.03 and
4.04 have ceased because he is on an unpaid absence from service shall again be
eligible to have such contributions made on the date he returns to service as an
Eligible Employee. No contributions may be made for a Member for any unpaid
period of absence from service including, but not limited to, absence due to
sickness, approved leave of absence, or service in the Armed Forces.
(d) A Member for whom contributions under Sections 4.01, 4.03 and
4.04 have ceased because he has ceased to be an Eligible Employee but,
nevertheless, continues to be an Employee shall again be eligible to have such
contributions made on the next Entry Date after he again becomes an Eligible
Employee and gives written notice to the Plan Administrator on the prescribed
form.
Section 4.09 - Limitation of Contributions
-----------------------------
The sum of Before-Tax Matched Contributions and Before-Tax Unmatched
Contributions remitted on behalf of any Member shall be limited to $10,500, or
such other dollar amount as may be specified by the Secretary of the Treasury
pursuant to Section 402(g) of the Code. Contributions shall be further limited
as described in Article XIX. In accordance with Code Section 402(g)(2)(A)(ii),
any excess deferral shall be distributed to a Member by April 15 following the
close of the Plan Year in which such excess deferral occurred. Any such
distribution shall include income and loss allocated to such excess.
ARTICLE V - Trust Fund
Section 5.01 - The Trust Agreement
---------------------
Energizer Holdings, Inc. shall enter into one or more trust agreements (the
"Trust Agreement") which shall contain such provisions as shall render it
impossible for any part of the corpus of the Trust Fund or income therefrom to
be at any time used for, or diverted to, purposes other than for the exclusive
benefit of Members. Any or all rights or benefits accruing to any person under
the Plan with respect to any Contributions deposited under the Trust Agreement
shall be subject to all the terms and provisions of the Trust which shall be
part of the Plan.
Section 5.02 - The Trustee
------------
The Trustee shall be appointed by the Board of Directors or its delegatee to
serve at its pleasure. The Trust Fund may be held by the Trustee as part of a
master or collective trust comprised of assets of various qualified plans
maintained by the Company.
Section 5.03 - Separate Investment Funds
---------------------------
The Trustee will maintain as many separate Investment Funds, each with different
investment objectives, as the Investment Committee deems advisable. Such
Investment Funds may be added or deleted as the Investment Committee so
determines in accordance with the provisions of Section 14.03. The Investment
Funds are described in Articles VI and VII. Each Investment Fund may be part of
a fund with the same investment objectives maintained by the Trustee for the
benefit of participants in other qualified plans maintained by the Company, or
may be a separate fund maintained only for the benefit of Members of this Plan.
Earnings or gains derived from the assets of any Investment Fund will be
invested in that Fund. Appropriate Accounts for each Member shall be established
and maintained in each Investment Fund in which a Member has an interest.
Section 5.04 - Temporary Investment
---------------------
Pending permanent investment of the assets of any Investment Fund, the Trustee
temporarily may make short-term investments in obligations of the United States
Government, commercial paper, an interim investment fund for tax qualified
employee benefit plans established by the Trustee unless otherwise provided by
applicable law, or other investments of a short-term nature.
Section 5.05 - Investment Managers
--------------------
Energizer Holdings, Inc. may, by action of the parties authorized under Article
XIV, enter into a written agreement with, or direct the Trustee to enter into an
agreement with, one or more investment managers to manage the investments of one
or more of the Investment Funds. Such investment managers may include one or
more insurance companies which enter into guaranteed investment contracts with
the Trustee. Energizer Holdings, Inc. may, from time to time, remove any such
investment manager or any successor investment manager, or direct the Trustee to
do so, and any such investment manager may resign. The Company may, upon
removal or resignation of an investment manager, provide for the appointment of
a successor investment manager.
ARTICLE VI - ESOP Common Stock Fund
Section 6.01 - The ESOP Common Stock Fund
------------------------------
(a) The assets of the ESOP Common Stock Fund shall be invested
primarily in Energizer Holdings, Inc. Common Stock. All Company Matching
Contributions remitted to the Plan shall be invested solely in the ESOP Common
Stock Fund.
(b) It is intended that the ESOP Common Stock Fund constitute an
"employee stock ownership plan" within the meaning of Code Section 4975(e)(7) .
(c) Shares of ESOP Common Stock shall be allocated to the Accounts
of Members as soon as practicable. The number of shares acquired with Company
Matching Contributions to be allocated to each Member's Account shall be
determined by multiplying the total number of shares to be allocated to Members'
Accounts by a fraction, the numerator of which equals the amount of Before-Tax
Matched Contributions made on behalf of such Member during the period of
allocation, and the denominator of which equals the total of all Before-Tax
Matched Contributions made on behalf of the Members for the period of
allocation.
Section 6.02 - ESOP Common Stock Dividends
------------------------------
(a) ESOP Common Stock Allocated to Member Accounts. Cash dividends paid
- --- --------------------------------------------------
with respect to ESOP Common Stock credited to a Member's Accounts may, at the
- ---
direction of the Company, be paid by the Trustee directly to the Members.
- --
(b) Stock Dividends. Shares of ESOP Common Stock received by the Trustee as
- --- ---------------
stock dividends or stock splits with respect to ESOP Common Stock allocated
to any Member's Accounts shall be credited to such Member's Accounts.
Section 6.03 - Withdrawals and Distributions
-------------------------------
(a) In the event a Member becomes entitled to a distribution or
withdrawal, or loan of some or all of amounts invested in the ESOP Common Stock
Fund, the Trustee shall cause as many shares of such Member's ESOP Common Stock
as are the subject of such distribution, loan, or withdrawal to be sold in the
open market, or redeemed or repurchased for cash or, in the case of a
distribution or withdrawal, distributed in kind, in accordance with the
distribution election of the Member.
Section 6.04 - Voting and Tendering
----------------------
Each Member shall have the right and shall be afforded the opportunity to
instruct the Trustee how to vote at any meeting of Energizer Holdings, Inc.
shareholders those shares of ESOP Common Stock allocated or credited to his
Accounts as of a date prior to such meeting as established by the Plan
Administrator for administrative purposes. Instructions by Members to the
Trustee shall be in such form and pursuant to such regulations as the Plan
Administrator may prescribe and any such instructions shall remain in the strict
confidence of the Trustee. If the Trustee does not timely receive instructions
from a Member regarding his shares, the Trustee shall be required to vote such
shares in the same proportion as were voted those shares for which the Trustee
received Member instruction.
Each Member shall have the right to instruct the Trustee in writing as to the
manner in which to respond to a tender or exchange offer (other than a tender or
exchange offer made by the Company) for any or all shares of ESOP Common Stock
credited to such Member's Accounts as of a date prior to the expiration of the
offer, as established by the Plan Administrator for administrative purposes.
The Trustee shall notify each Member and utilize its best efforts to timely
distribute or cause to be distributed to him such information as will be
distributed to shareholders of the Company in connection with any such tender or
exchange offer. Upon its timely receipt of such instructions, the Trustee shall
tender or exchange such shares of ESOP Common Stock as and to the extent so
instructed. The failure of a Member to instruct the Trustee to tender or
exchange shares of ESOP Common Stock credited to his account shall be deemed to
be an instruction not to tender or exchange such shares of stock. Accordingly,
if the Trustee does not receive instructions from a Member regarding any such
tender or exchange offer for ESOP Common Stock, the Trustee shall not tender
such shares. Notwithstanding the foregoing, the rights of Members and duties of
the Trustee set forth herein shall not apply in the event of a tender offer by
the Company for any or all shares of ESOP Common Stock credited to such Members'
Accounts; nor shall the Trustee tender or exchange any ESOP Common Stock.
Section 6.05 - Diversification Elections
--------------------------
A Member who has attained age fifty-five (55) and completed ten (10) years of
participation in the Plan (and any predecessor plan thereof including, but not
limited to, the Prior Plan), may, at any time and from time to time following
the close of the Plan Year during which the Member has satisfied these
requirements, elect to diversify the investment of up to an aggregate of fifty
percent (50%) of the shares of ESOP Common Stock in his ESOP Common Stock Fund
Account attributable to Company Matching Contributions (to the extent such
portion exceeds the amount to which a prior election applies), as determined on
the last day of the Plan Year immediately preceding the Plan Year during which
the election occurs, by electing to invest such portion of his Account in the
Investment Funds authorized by the Investment Committee and maintained by the
Trustee in accordance with Section 7.01 hereof. For purposes of this paragraph,
any reduction in the Member's Account in the ESOP Common Stock Fund after the
close of such immediately preceding Plan Year which is attributable to (i) a
hardship withdrawal as described in Section 12.02 hereof, or (ii) a Member's
loan as described in Section 16.01 hereof, shall be treated as subject to the
Member's election to diversify for purposes of applying the fifty percent (50%)
limit. (Restrictions on such loans and hardship withdrawals, however, shall be
governed solely by Article XVI and Article XII, respectively.)
ARTICLE VII - Other Investment Funds
Section 7.01 - Other Investment Funds
------------------------
Other Investment Funds, as authorized by the Investment Committee and maintained
by the Trustee, from time to time may include the following:
(a) U.S. Government Money Market Fund. The objective of this type
---------------------------------
of fund is to seek the maximum current income consistent with preservation of
principal and liquidity. This type of fund invests in short-term securities
issued by the United States Government, its agencies and instrumentalities, and
in repurchase agreements collateralized by such securities. A portion of the
U.S. Government securities held by the Federal Portfolio may not be backed by
the full faith and credit of the U.S. Government.
(b) Fixed Income Fund. The objective of this type of fund is to
-------------------
provide a stable principal amount, but a higher yield than can be earned in a
money market fund. Assets are primarily invested in contracts with insurance
companies which provide for repayment by the issuing company of principal with
interest at a fixed rate, or fixed minimum rate, for a specified period and in
short-term corporate and government bonds. The yield on this type of fund is a
blended rate reflecting the interest rates on all investments in the fund.
(c) Balanced Fund. The objective of this type of fund is to
--------------
follow a diversified and balanced program of investing in bonds and common
stock. This type of fund invests sixty-seventy percent (60%-70%) of its net
assets in stocks of large well-known companies and thirty-forty percent
(30%-40%) of its net assets in long-term high-quality bonds. This type of fund
is designed to provide conservation of principal, a reasonable income return,
and potential growth of capital.
(d) Equity Index Fund. A growth and income fund, this type of
-------------------
fund invests in all of the stock included in the Standard & Poor's (S&P) 500
Index in approximately the same proportions as they are represented in the S&P
500 Index. This type of fund is designed to provide investment results that
correspond to the performance of the Standard & Poor's 500 Composite Stock Price
Index.
(e) Growth and Income Fund. This type of fund invests in common
------------------------
stocks that have a history of paying dividends. This type of fund selects
common stocks that, in the opinion of the investment manager, are undervalued in
the marketplace. This type of fund seeks long-term capital growth and a
reasonable level of dividend income.
(f) Aggressive Growth Fund. This type of fund primarily invests
------------------------
in common stocks of smaller companies with favorable prospects for growth in
market value. This type of fund seeks long-term growth of capital.
(g) International Growth Fund. This type of fund invests in a
---------------------------
diversified portfolio of international stocks, or stocks of companies based
outside of the United States. The Portfolio seeks to provide long-term growth
of capital. The Portfolio provides little, if any, dividend income.
(h) The Ralston Stock Fund. The assets of the Ralston Stock Fund
-----------------------
shall be invested solely in the common stock of Ralston Purina Company ("Ralston
Stock"), credited to a Member's Account upon the spin-off of Energizer Holdings,
Inc., by the Company effective April 1, 2000, which resulted in all holders of
Ralston Stock receiving one (1) share of Energizer Holdings, Inc. Stock for
every three (3) shares of Ralston Stock. The Trustee shall not purchase any
additional shares of Ralston Stock for crediting to Members' Accounts. Any
dividends paid with respect to Ralston Stock shall be reinvested in accordance
with a Member's investment directions, as provided in Section 7.02. All shares
of Ralston Stock held in the Fund shall be held in the name of the Trustee or
its nominee. Any assets remaining in the Ralston Stock Fund on March 31, 2001
shall be re-invested in accorance with a Member's investment directions, as
provided in Section 7.02, or, if no such directions have been provided, invested
in the U.S. Government Money Market Fund.
Section 7.02 - Investment of Contributions
-----------------------------
(a) Election. All Before-Tax Unmatched, After-Tax Supplemental
--------
Contributions, Rollover Contributions, and all Before-Tax Matched Contributions
remitted to the Plan will be invested at the election of the Member in multiples
of one percent (1%) in the Investment Funds authorized by the Investment
Committee and maintained by the Trustee in accordance with Section 7.01.
Contributions for which a Member does not make a valid election shall be
invested in the U.S. Government Money Market Fund. Amounts in the ESOP Common
Stock Fund attributable to Company Matching Contributions, including the
earnings thereon, can be invested only in the ESOP Common Stock Fund.
Investment directions of each new Member shall be delivered in
writing to the Plan Administrator or its delegatee. Except with respect to
Company Matching Contributions invested solely in the ESOP Common Stock Fund in
accordance with Section 6.01, a Member may change his direction governing
investment of future contributions to be credited to his respective Accounts at
any time upon providing the appropriate notice to the Plan Administrator or its
delegatee. An investment direction once given shall be deemed to be a
continuing direction until explicitly changed by the Member by a subsequent
direction to the Plan Administrator or its delegatee in accordance with
appropriate procedures set forth by the Plan Administrator or its delegatee.
(b) Transfer of Investments. Except with respect to Company
-------------------------
Matching Contributions invested solely in the ESOP Common Stock Fund in
accordance with Section 6.01, a Member may elect, at any time, to have all or
any multiple of one percent (1%) of the value of his Account as of any future
Valuation Date or any dollar amount of his Account transferred to any separate
Investment Fund maintained by the Trustee in accordance with Section 7.01, other
than the Ralston Stock Fund.
(c) Notwithstanding anything in this Section to the contrary, any
contributions invested in an investment contract or retirement savings trust
shall be subject to any and all terms of such contract or trust, regarding the
transfer of assets from or into such contract or trust.
Section 7.03 - Member Responsibility For Selection of Funds
-------------------------------------------------
Each Member is solely responsible for the selection of his Investment Funds.
Neither the Trustee, the Plan Administrator, the Company nor any of the officers
or supervisors of the Company are empowered to advise a Member as to the manner
in which his Accounts shall be invested. The fact that a security is available
to members for investment under the Plan shall not be construed as a
recommendation for the purchase of that security, nor shall the designation of
any Investment Fund impose any liability on the Company, its directors, officers
or employees, the Trustee, or the Plan Administrator.
When an investment election regarding the Fund is required to be made by
Members, such Member shall be informed as to the manner in which their funds
will be invested if they fail to make an affirmative election in a timely
manner. In such event, those Members who fail to communicate an election to the
Plan Administrator or its delegatee shall be deemed to have elected the
specified investment and the Company, its directors, officers or employees, the
Trustee, the Investment Committee, and any other plan fiduciary shall be deemed
to be relieved of fiduciary responsibility for the investment of such funds.
Section 7.04 - Voting and Tendering
----------------------
Each Member shall have the right and shall be afforded the opportunity to
instruct the Trustee how to vote at any meeting of Energizer Holdings, Inc.
shareholders those shares of Common Stock held in the ESOP Common Fund which are
allocated to his Accounts as of a date prior to such meeting as established by
the Plan Administrator for administrative purposes. Instructions by Members to
the Trustee shall be in such form and pursuant to such regulations as the Plan
Administrator may prescribe and any such instructions shall remain in the strict
confidence of the Trustee. If the Trustee does not receive timely instructions
from a Member regarding the voting of his shares, the Trustee shall be required
to vote such shares in the same proportion as were voted those shares for which
the Trustee received Members' instructions.
Each Member (or in the event of his death, his Beneficiary) shall have the right
to instruct the Trustee in writing as to the manner in which to respond to a
tender or exchange offer for any or all shares of Common Stock credited to such
Member's Account as of a date prior to the expiration of the offer as
established by the Plan Administrator for administrative purposes. The Trustee
shall notify each Member (or Beneficiary) and utilize its best efforts to timely
distribute or cause to be distributed to him such information as will be
distributed to shareholders of the Company in connection with any such tender or
exchange offer. Upon its timely receipt of such instructions, the Trustee shall
tender or exchange such shares of Common Stock as and to the extent so
instructed. The failure of a Member to instruct the Trustee to tender or
exchange shares of Common Stock credited to his account shall be deemed to be an
instruction not to tender or exchange such shares of stock. Accordingly, if the
Trustee does not receive instructions from a Member (or Beneficiary) regarding
any such tender or exchange offer for Common Stock, the Trustee shall not tender
or exchange such stock. Notwithstanding the foregoing, the rights of each
Member and duties of the Trustee set forth herein shall not apply in the event
of a tender offer by the Company for any or all shares of Common Stock credited
to such Member's Account under the Trust Fund; nor shall the Trustee tender or
exchange any Common Stock.
ARTICLE VIII - Valuation of Assets and Members' Accounts
Section 8.01 - Valuation of Assets
---------------------
(a) At the end of each Valuation Date, the Trustee shall determine
the aggregate fair market value of the assets then held by it in each Investment
Fund.
(1) The market value of shares of Energizer Stock held in the
ESOP Common Stock Fund shall be the closing values on the New York Stock
Exchange.
Section 8.02 - Valuation of Accounts
-----------------------
At the end of each Valuation Date, before the calculation and debiting of any
distributions and in-service withdrawals from the Trust fund or the posting of
transfers among Investment Funds, the net credit balances in the Accounts of
Members or their beneficiaries will be adjusted to reflect any contributions to,
and investment gains or losses in, the respective Investment Funds.
Section 8.03 - Statement of Accounts
-----------------------
Each member shall be furnished, at least annually, a statement setting forth the
value of his Accounts.
Section 8.04 - Accounts in Units
-------------------
Each Member's Accounts shall be maintained in units.
ARTICLE IX - Vesting of Contributions
Section 9.01 - Vesting of Before-Tax and After-Tax Supplemental Investment
--------------------------------------------------------------
Accounts
---
Each Member's Before-Tax Investment Account and After-Tax Supplemental
Investment Account shall at all times be fully vested.
Section 9.02 - Vesting of Company Contributions Account
--------------------------------------------
(a) Subject to the provisions of subparagraph (b), a Member shall
be vested in his Company Matching Contribution Account (i) at the rate of
twenty-five percent (25%) for each whole year included in a Period of Service
regardless of whether such employment occurs before or coincident with
participation in the Plan, or (ii) one hundred percent (100%) in the event of
the occurrence of any one of the following:
(1) attainment of age sixty-five (65),
(2) Retirement,
(3) Disability,
(4) death,
(5) termination of the Plan,
(6) complete discontinuance of Company contributions.
(b) (i) An EPS Member shall at all times be fully vested in
his Company Before-Tax Contribution Account.
(ii) An EPS Member shall be fully vested in his Company
Matching Contribution Account after a three (3) year Period of Service.
ARTICLE X - Distributions
Section 10.01 - General
-------
(a) Upon the Termination of Employment of a Member at or after the
attainment of age sixty-five (65), or upon the occurrence of Retirement,
Disability or other subsection 9.02(a) event, the entire amount credited to all
of his Accounts determined as of the Valuation Date on which the Trustee
receives properly authorized instructions from the Plan Administrator to make
the payment, and such amount, as adjusted in accordance with Article X shall be
distributed as provided in Section 10.02 to the Member, unless the Member has
elected to defer the distribution of his Accounts in accordance with
subparagraph (c) below.
(b) Upon the Termination of Employment of a Member prior to
attaining age sixty-five (65) for reasons other than Retirement, Disability, or
death, or other Section 9.02(a) event, the vested portion of the value of his
Accounts shall become distributable in accordance with Article IX (Vesting of
Contributions) and shall be determined as of the Valuation Date on which the
Trustee receives properly authorized instructions to make the payment from the
Plan Administrator, and such amount, as adjusted in accordance with Section
10.06, shall be distributed as provided in Section 10.02, unless the Member has
elected to defer the distribution of his Accounts in accordance with
subparagraph (c) below.
(c) A Member may, upon the Termination of Employment for whatever
reason, elect to defer the distribution of the vested portion of the value of
his Accounts until a date which is not later than the December 31 of the
calendar year in which the Member attains age seventy and one-half (70-1/2)
years (the "Deferral Period") by notifying the Plan Administrator or its
delegatee in writing of such election to defer as soon as practicable after
Termination of Employment, in accordance with procedures established by the Plan
Administrator. At any time during the Deferral Period, a Member may revoke the
election to defer all or a portion of the total remaining balance of the vested
portion of his Accounts, and request a timely distribution of all or any portion
of the total remaining balance of the vested portion of his Accounts.
Section 10.02 - Methods of Distribution
-------------------------
Except as otherwise provided in this Article, distributions provided for under
the Plan shall be made in the following manner:
(a) A Member who has incurred a Termination of Employment, for
whatever reason, by written notice on a form approved by the Plan Administrator
for such purpose delivered to the Plan Administrator at least fifteen (15) days
prior to his Termination of Employment, or such shorter period as determined by
the Plan Administrator may irrevocably elect to receive his distribution, unless
the Member has filed a grievance pursuant to an authorized collective bargaining
agreement seeking reinstatement or an administrative charge with a government
agency seeking reinstatement and a final determination for the grievance or
charge has not been reached. If Member makes such an irrevocable election, the
distribution may be received in accordance with any one of the following methods
of payment:
(1) by purchase of a nontransferable annuity contract from an
Insurance Company, or
(2) by a lump sum payment as soon as practicable after such a
Termination of Employment,
(3) in monthly, quarterly, semiannual or annual installments
of principal (together with earnings on the remaining Account balance) to
reflect (A) fixed dollar installments, (B) fixed percentage installments, (C)
declining balance installments, or (D) life expectancy installments,
(b) If a Member elects a distribution in the form of an annuity
contract that permits payments in the form of a life annuity, the contract shall
provide that benefits are paid automatically in the form of a Qualified Joint
and Survivor Annuity, as defined in Section 10.03, unless the Member, with the
consent of his Eligible Spouse, if any, elects another form of payment in
accordance with Section 10.04.
(c) All distributions from Investment Funds other than the ESOP
Common Stock Fund shall be made in cash. Except when an annuity contract is
purchased, distributions from the ESOP Common Stock Fund shall be in Company
Stock with cash paid for any fractional share, unless the Member or his
Beneficiary elects to take a distribution in cash.
(d) A Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator or its delegatee, to have any portion of an
Eligible Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
As used herein, Eligible Rollover Distribution shall mean any
distribution of all or any portion of the balance to the credit of the
Distributee's Accounts except that an Eligible Rollover Distribution does not
include any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributee's designated beneficiary, or for a
specified period of ten (10) years or more; any distribution to the extent such
distribution is required under Code Section 401(a)(9) and the portion of any
distribution that is not includible in gross income (determined without regard
to the exclusion for net unrealized appreciation with respect to Employer
securities).
As used herein, Eligible Retirement Plan shall mean an individual
retirement account described in Code Section 408(a), an individual retirement
annuity described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a), that
accepts the Distributee's Eligible Rollover Distribution. However, in the case
of an Eligible Rollover Distribution of the surviving spouse, an Eligible
Retirement Plan is an individual retirement account or individual retirement
annuity.
A Distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employees' or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Code Section
414(p) are Distributee's with regard to the interest of the spouse or former
spouse.
A Direct Rollover shall mean a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
Section 10.03 - Qualified Joint and Survivor Annuity
----------------------------------------
A Qualified Joint and Survivor Annuity means an annuity for the life of the
Member, with a survivor annuity for the life of the Eligible Spouse which is not
less than fifty percent (50%) and is not greater than one hundred percent (100%)
of the amount of the annuity which is respectively payable during the joint
lives of the Member and the Eligible Spouse and which is the actuarial
equivalent of a single life annuity for the life of the Member. In the case of
a Member who does not have an Eligible Spouse, a Qualified Joint and Survivor
Annuity means an annuity for the life of the Member.
Each Member entitled to receive his benefit in the form of a Qualified Joint and
Survivor Annuity shall furnish proof of the age of the Eligible Spouse within a
reasonable period before payments commence under the Qualified Joint and
Survivor Annuity.
Section 10.04 - Election Not to Receive a Qualified Joint and Survivor Annuity
--------------------------------------------------------------
An election not to receive retirement income in the form of a Qualified Joint
and Survivor Annuity may be made (and any prior such election may be revoked) by
a Member entitled to receive his retirement income in such form, subject to the
following:
(a) The election must be made during the ninety (90) day period
ending on the date payments of benefits to the Member commence ("Election
Period").
(b) The election must be in writing on a form acceptable to the
Plan Administrator (or the insurance company) and must be signed by the Member.
The election form must clearly indicate that the Member is electing to receive
his retirement income in a form other than a Qualified Joint and Survivor
Annuity.
(c) The Eligible Spouse, if any, of the Member must consent to the
election in writing on a form acceptable to the Plan Administrator (or the
Insurance Company), signed by the Eligible Spouse and witnessed by a Plan
representative or a notary public. The consent must acknowledge the effect of
the election. Such a consent is not necessary if the Member establishes to the
satisfaction of the Plan Administrator (or the insurance company) that such
written consent may not be obtained because there is no Eligible Spouse, because
the Eligible Spouse cannot be located, or because of such other circumstances as
Treasury Regulations may prescribe. Any consent by an Eligible Spouse shall be
effective only with respect to such Spouse, and must specifically identify the
beneficiary and the optional form of benefit to which the consent relates.
(d) Any such election may be revoked or changed by the Member by a
subsequent election made in accordance with this Section during the Election
Period. The election may be revoked, but not changed, without the consent of
the Eligible Spouse. The Eligible Spouse may not revoke a consent to a valid
election.
(e) Within a reasonable period [no later than ninety (90) days and
at least thirty (30) days] before the benefit payments commence, the Plan
Administrator (or the insurance company) shall furnish to each Member entitled
to receive his retirement income in the form of a Qualified Joint and Survivor
Annuity, a written explanation of:
(1) The terms and conditions of the Qualified Joint and
Survivor Annuity;
(2) The availability of the election provided by this Section
and the effect of making such an election;
(3) The rights of the Eligible Spouse of the Member; and
(4) The right to revoke a previous election and the effect of
such revocation.
Section 10.05 - Completion of Appropriate Forms
----------------------------------
The Plan Administrator has prescribed forms providing written notice to the
Company in order for a distribution to be made under the Plan. In the event a
Member or a Beneficiary does not complete, execute and return such forms to the
Company, the distribution of such Member's Accounts shall (except to the extent
provided in Section 17.09), be mailed, as provided in Section 10.02(c) in cash,
to the Address of Record as provided in Section 17.08 to a Member as soon as
practicable following the sixty-fifth (65th) birthday of such Member, or to a
Beneficiary. The Valuation Date for purposes of this Section 10.05 shall be as
described in Article VIII.
Section 10.06 - Accounts of Former Employees
-------------------------------
The amount credited to the accounts of a Member, if any, after Termination of
Employment of such Member shall be adjusted in accordance with Article VIII as
of each Valuation Date next following such Termination of Employment until such
amount shall have been distributed in full in accordance with this Article.
Distribution of the balance of the amount credited to the Accounts of a Member,
determined as of the Valuation Date immediately preceding such distribution,
shall constitute payment in full of the benefits of such Member hereunder. Any
balance of such accounts remaining unpaid at the death of a Member or
Beneficiary shall be distributed in accordance with Article XI.
Any amounts being held for deferred distribution will continue to be held by the
Trustee and invested in accordance with the instructions of the Members. Such
instructions will be given in accordance with the provisions of this Plan.
Persons receiving a deferred distribution are former Members and shall not be
credited with Before-Tax, After-Tax Supplemental or Company Matching
Contributions after Termination of Employment, except with respect to
compensation paid subsequent to the Termination of Employment but attributable
to services performed as an Employee in Covered Service.
Section 10.07 - Consent to Payment
--------------------
Notwithstanding the foregoing provisions of Article X: (a) if the vested
portion of the Accounts of a Member is $5,000 or less, it shall be distributed
in a lump sum payment; and (b) if the vested portion of the Accounts of a Member
exceeds $5,000 at the time the Member first becomes entitled to a distribution
under this Article X, and the Member has not attained sixty-five (65) years of
age, the Member must consent in writing before any portion of such Account may
be distributed to the Member.
Section 10.08 - Latest Deferral of Payment
-----------------------------
Notwithstanding anything to the contrary in the Plan, payment of benefits
pursuant to the Plan (including pursuant to annuity contracts distributed to a
Member) shall not provide for deferment of payments extending beyond the
following periods:
(a) If the Beneficiary or contingent annuitant of a Member under
any method of distribution is other than his Eligible Spouse, the actuarial
present value of payments expected to be made to the Member shall not be less
than fifty-one percent (51%) of the total actuarial present value of the
benefits expected to be paid to the Member and his Beneficiary or contingent
annuitant.
(b) Unless the Member elects otherwise in writing, the latest date
by which payment of benefits must commence shall be the sixtieth (60th) day
after close of the Plan Year in which the latest of the following events occurs:
(1) the Member attains sixty-five (65) years of age; (2) the Member incurs a
Termination of Employment; and (3) ten (10) years have elapsed from the time the
Member commenced participation in the Plan.
If payment in full is not feasible within the time limits
prescribed by this subsection (b), the Plan Administrator may make interim
payments from accounts of the Member.
(c) Notwithstanding anything to the contrary in this Plan and
regardless of any election by the Member, payment of benefits shall commence no
later than the April 1 of the calendar year following the later of the (i)
calendar year in which the Member has attained age seventy and one-half (70-1/2)
years, or (ii) the calendar year in which the Member has actually retired or
incurred a Termination of Employment. The minimum distribution to be made each
year shall be the amount equal to the quotient obtained by dividing the Member's
Account balance at the beginning of the year by the life expectancy of the
Member (or the joint life and last survivor expectancy of the Member and the
Beneficiary). If payments are made over the life expectancy of the Member, or
the joint life expectancy of the Member and his spouse, life expectancy will be
determined either: (1) only once, at the time the Member (or his spouse)
receives the first distribution of his account balance; or (2) periodically, but
no more frequently than annually. If payments are made over the joint life
expectancy of the Member and a non-spouse Beneficiary, the change in the life
expectancy of the Member may be determined periodically, but not more frequently
than annually; but the life expectancy of the non-spouse Beneficiary shall be
determined only once at the time the Member (or Beneficiary) receives the first
distribution of his account balance.
Section 10.09 - Lost Payees
------------
In the event the amount credited to the Account(s) of a Member remain unclaimed
for more than five (5) years after such amount becomes distributable pursuant to
Section 10.07, and the Plan Administrator is unable to locate such Member (or
his Beneficiary), the Plan Administrator may direct such amount to be applied to
reduce Company Matching Contributions provided that in the event such Member (or
his Beneficiary) subsequently claims such amounts, the Employer shall contribute
an amount to the Plan which will cause the balance of such Member's account(s)
to equal the amount which would have been credited to such account(s) as of such
date if such amounts had never been reallocated pursuant to this Section.
Section 10.10 - Distribution of Annuity Contracts
------------------------------------
Notwithstanding anything to the contrary in the Plan, the Plan Administrator may
distribute all or any portion of the balance of an account that is distributable
to a Member (or a Beneficiary) by purchasing a nontransferable annuity contract
from an insurance company and transferring ownership of the contract to the
Member. Any annuity contract distributed to a Member (or a Beneficiary) shall
provide payment options that conform to those provided by the terms of the Plan,
so that payments pursuant to the contract satisfy the survivor annuity and other
requirements of the Plan governing payment of benefits.
ARTICLE XI - Death Benefits
Section 11.01 - Death Benefits
---------------
Upon the death of a Member, the amount credited to the Member's account shall
become distributable to the Beneficiary or Beneficiaries of the Member in a lump
sum payment as soon as practicable after the death of such Member, unless the
Member had elected payment of his benefit in the form of a life annuity prior to
his death.
Section 11.02 - Beneficiary Designation
------------------------
Subject to Section 11.03, each Member from time to time on a form acceptable to
the Plan Administrator may designate any person (including a trust) or persons
(concurrently, contingently or successively) to whom the Member's benefits under
the Plan are to be paid if the Member dies before receiving all of such
benefits. A beneficiary designation form shall be effective only when the form
is filed in writing by the Member and shall cancel all beneficiary designation
forms previously signed and filed by the Member.
With respect to a Member who has at least one Hour of Service after August 22,
1984, the designation of a non-spouse Beneficiary shall be valid only if the
surviving spouse of the Member shall have consented in writing to such
designation, the consent acknowledges the effect of such designation and the
consent is witnessed by a Plan representative or a notary public.
Section 11.03 - Pre-Retirement Survivor Annuity
---------------------------------
This Section shall apply only to a Member who is eligible to receive a Qualified
Joint and Survivor Annuity pursuant to Article X because the Member elected
payment in the form of a life annuity and who dies before payment of benefits
has commenced.
Upon the death of such a Member, at least fifty percent (50%) of the amount
credited to the Member's Accounts (or the cash value of an annuity contract
distributed to the Member) as of the date of death shall be distributed in the
form of a single life annuity for the life of the Member's Eligible Spouse
unless the Eligible Spouse has validly consented to the designation of another
Beneficiary in accordance with Section 11.02 after the earlier of (a) the first
day of the Plan Year in which the Member attained thirty-five (35) years of age
or (b) the date on which such Member terminates employment. If the amount to be
applied to the purchase of such an annuity is Five Thousand Dollars ($5,000) or
less, such amount shall be paid to the Eligible Spouse in cash in lieu of the
annuity.
An Eligible Surviving Spouse entitled to receive a single life annuity may
direct that payments under the annuity commence within a reasonable time after
the Member's death.
Section 11.04 - Payment of Benefit
--------------------
The portion of the death benefit not payable in the form of a Pre-retirement
Survivor Annuity pursuant to Section 11.03 shall be distributed in one lump sum
payment as soon as practicable after the death of the Member. Such payment
shall be made to the Member's Eligible Spouse unless such Eligible Spouse has
consented to another beneficiary pursuant to Section 11.02.
Section 11.05 - Latest Time for Payment
--------------------------
If a Member dies after distribution of benefits has commenced but before the
entire interest has been distributed, the remaining portion of such interest
shall be distributed at least as rapidly as the distribution option elected by
the Member.
If a Member dies before a distribution of benefits has commenced, the entire
interest shall be distributed within five (5) years of the Member's death;
unless any portion of the interest is payable to or for a Beneficiary over a
period not to exceed the life or life expectancy of the Beneficiary and payments
commence within one year after the Member's death. However, if the Beneficiary
is the surviving spouse of the Member, distribution need not commence before the
date when the Member would have attained age seventy and one-half (70-1/2)
years; provided that if the surviving spouse dies before distribution to such
spouse begins, this paragraph shall be applied as if the surviving spouse were
the Member.
Section 11.06 - Payments in the Event of Death with No Designated Survivor or of
----------------------------------------------------------------
Incompetency
- ------------
In the event of (a) the death of a Member or Beneficiary not survived by a
person designated to receive any payment then due, or (b) the Plan Administrator
finding that a Member or other person entitled to a benefit is unable to care
for his affairs because of illness or accident or is a minor or has died, or (c)
no Beneficiary being designated, the Plan Administrator 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, a person with whom he resides, or to any other person the
Plan Administrator considers suitable, and any such payment so made shall be a
complete discharge of the liabilities of the Plan therefor.
Section 11.07 - Renunciation of Death Benefit
--------------------------------
Any Beneficiary of a Member entitled to a benefit under this Plan may disclaim
his right to all or a portion of such benefit by filing a written irrevocable
and unqualified refusal to accept such a benefit with the Plan Administrator
before receiving any such benefit. If such a renunciation is filed by the
Eligible Spouse of the Member, the value of the annuity described in Section
11.03 shall be zero. Any benefits so disclaimed shall be distributable to the
person or persons (and in the proportions) to which such benefit would have been
distributable if the Beneficiary who so disclaims such benefits had predeceased
such Member.
Section 11.08 - Proof of Death and Right of Beneficiary or Other Person
-------------------------------------------------------------
The Plan Administrator may require and rely upon such proof of death and such
evidence of the right of any Beneficiary or other person to receive the
undistributed value of the Accounts of a deceased Member as the Plan
Administrator may deem proper and its determination of death and of the right of
such Beneficiary or other person to receive payment shall be conclusive.
ARTICLE XII - Withdrawal Prior to Termination of Employment
Section 12.01 - Withdrawal of After-Tax Supplemental Contributions
------------------------------------------------------
A Member who has made After-Tax Supplemental Contributions may withdraw such
contributions in accordance with guidelines determined by the Plan Administrator
at any time by submitting a written request to the Plan Administrator specifying
the amount to be withdrawn. Payment shall be made to the Member as soon as
practicable after the submission of the Member's written request to the Plan
Administrator. The withdrawal may not exceed the lesser of the Member's
After-Tax Supplemental Investment Account or his total After-Tax Supplemental
Contributions.
Section 12.02 - Hardship Withdrawal of Before-Tax Contributions and/or Company
--------------------------------------------------------------
Matching Contributions
----------------------
A Member may withdraw amounts from his Before-Tax Contribution Account and/or
his Company Matching Contribution Account by submitting his written request to
the Plan Administrator at such time and in such manner as shall be prescribed by
the Plan Administrator subject to the following provisions:
(a) The withdrawal request must be for an immediate and heavy
financial need on account of:
(1) Nonreimbursable medical expenses incurred by the Member,
his Spouse, or dependents;
(2) Costs directly related to the purchase (excluding
mortgage payments) of a principal residence for the Member;
(3) Payment of tuition for the next twelve (12) months of
post-secondary education for the Member, his Spouse, or dependents; or
(4) The need to prevent the eviction of the Member from his
principal residence or foreclosure on the mortgage on the Member's principal
residence.
(b) The amount withdrawn may not exceed the actual expense
incurred or to be incurred by the Member on account of such needs. The amount
of an immediate and heavy financial need may include any amounts necessary to
pay any federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution. The amount may be withdrawn only
to the extent that the need cannot be satisfied by other resources reasonably
available to the Member.
In making this determination, the Plan Administrator may rely on
the Member's representation that the need cannot be relieved:
(1) Through reimbursement or compensation by insurance or
otherwise;
(2) By reasonable liquidation of the Member's assets;
(3) By other distributions or loans from Company-sponsored
plans, or
(4) By borrowing from commercial sources on reasonable terms.
(c) Only one such withdrawal shall be permitted during a
twelve-month period.
(d) The maximum amount which may be withdrawn is the sum of:
(i) The dollar amount of Before-Tax Contributions made on
behalf of such Member after January 1, 1989 (but excluding income thereon);
(ii) The balance of his Company Matching Contributions
Account, provided he is fully vested in his Company Matching Contribution
Account; and
(iii) The balance of the Member's Before-Tax Investment
Account under the Prior Plan.
(e) The withdrawal shall be paid to the Member as soon as
practicable after the Member's written request is submitted to the Plan
Administrator.
(f) A Member requesting a hardship withdrawal after February 28,
1995 shall be precluded from making any Before-Tax Matched Contributions,
Before-Tax Unmatched Contributions, and After-Tax Supplemental Contributions
during the twelve (12) month period immediately following such withdrawal.
Section 12.03 - Age Fifty-Nine and One-Half (59-1/2) Withdrawal
----------------------------------------------------
A Member who has attained age fifty-nine and one-half (59-1/2) may withdraw
Before-Tax, After-Tax Supplemental, and Company Matching Contributions, and
related earnings (to the extent he is vested in such contributions and related
earnings) in accordance with guidelines determined by the Plan Administrator by
submitting a written request to the Plan Administrator specifying the amount to
be withdrawn. Payment shall be made to the Member as soon as practicable after
submission of the Member's written request to the Plan Administrator.
Section 12.04 - Order of Withdrawals
----------------------
(a) A Member wishing to withdraw amounts from his accounts must
first withdraw the total amount in his After-Tax Supplemental Investment
Account.
(b) Once a Member has withdrawn all amounts in his After-Tax
Supplemental Investment Account or if a Member has no After-Tax Supplemental
Investment Account, he must then withdraw amounts from his Rollover Account.
(c) When a Member has withdrawn all amounts in his After-Tax
Supplemental Investment Account or has no After-Tax Supplemental Investment
Account and has withdrawn all amounts in his Rollover Account or has no Rollover
Account, then the Member may withdraw amounts from his Before-Tax Investment
Account (withdrawing as a last resort the amounts invested in the ESOP Common
Stock Fund), provided he satisfies the requirements of Section 12.02.
(d) When a Member has withdrawn all other amounts, then the Member
may withdraw amounts from his Company Matching Contribution Account, to the
extent he is vested in his Account, provided he satisfies the requirements of
Section 12.02.
ARTICLE XIII - Forfeitures
Section 13.01 - Time of Forfeiture and Restoration
--------------------------------------
(a) If a Member incurs a Termination of Employment prior to the
attainment of age sixty-five (65) for reasons other than Retirement, Disability
or death, the portion, if any, of his Company Matching Contribution Account in
which he is not vested pursuant to Article IX shall be forfeited as of the
Valuation Date on which (i) the Member has received a distribution of the entire
vested portion of his Accounts, or (ii) the Member has incurred a five
consecutive year Break in Service.
(b) If a Member has forfeited a portion of his Company Matching
Contribution Account pursuant to subsection (a), such forfeited amount will be
restored if he is re-employed by the Company before he has incurred a Break in
Service of at least five (5) years. Any amounts restored and repaid to the
Trust Fund under this Section shall be paid into the remaining Funds in the same
proportion as Before-Tax Unmatched and After-Tax Supplemental Contributions are
currently being made.
The permissible sources for restoring forfeitures shall be income
or gain to the Plan, forfeitures, or Company contributions (without regard to
the existence of profits).
Section 13.02 - Disposition of Forfeitures
----------------------------
All forfeitures arising out of the application of the provisions of Section
13.01 shall be used to reduce Company Matching Contributions otherwise payable
to the Plan.
Section 13.03 - Effect of Withdrawal Under Article XII
-------------------------------------------
The non-vested Company Matching Contribution Account of a Member who makes a
withdrawal described in Article XII shall not be forfeited by reason thereof.
Section 13.04 - Parental Leave of Absence
----------------------------
In the case of an Employee who is absent from work for an approved parental
leave of absence, the Break in Service of the Employee shall not include the
twelve (12) consecutive month period beginning on the first anniversary of the
day such absence began. Absence from work for an parental leave of absence can
include approved absence from work on account of the pregnancy or birth of a
child of the employee, the placement of a child with the Employee in connection
with foster care or the adoption of the child, or for purposes of caring for a
child following such a birth or placement.
ARTICLE XIV - Administration of Plan
Section 14.01 - Plan Administrator
-------------------
Energizer Holdings, Inc., as the Plan Administrator, shall have the
responsibility for carrying out the provisions of the Plan and the general
administration of the Plan.
Section 14.02 -Administrative Committee
-------------------------
(a) The claims fiduciary for the Plan, in accordance with Article
XVIII, shall be the Administrative Committee, appointed by the Board of
Directors.
(b) All resolutions or other action taken by the Administrative
Committee shall be in accordance with its Charter and rules and procedures
adopted by the Administrative Committee.
(c) The Administrative Committee shall have the authority to amend
the Plan, to adopt plan amendments required to maintain the tax-favored status
of the Plan, to comply with applicable benefit plan laws and any other
amendments to the extent the annual cost to the Plan resulting from such
amendment does not exceed $250,000.
Section 14.03 - Investment Committee
---------------------
(a) Certain responsibilities to control and manage Plan assets, to
add or delete investment funds, and to appoint and remove the Trustee and any
investment managers retained in connection with the investment of Plan assets,
shall be placed in the Investment Committee appointed by the Board of Directors.
(b) All resolutions or other action taken by the Investment
Committee shall be in accordance with its Charter and rules and procedures
adopted by the Investment Committee.
Section 14.04 - Authority and Duties of Various Fiduciaries
------------------------------------------------
(a) Except for matters required by the terms of the Plan, or of
the Trust to be decided by the Trustee, the Plan Administrator shall have the
exclusive right to interpret the Plan and to decide any and all matters arising
under the Plan or in connection with its administration, including determination
of eligibility for, and the amount of distributions and withdrawals. The
Company shall have no power to direct or modify any interpreta-tions,
determinations, or decisions of the Plan Administrator. The Plan Administrator
may recommend amendments to the Board of Directors or the Administrative
Committee or its delegatee. The Plan Administrator may from time to time adopt
rules for the administration of the Plan and the conduct of its business, which
rules shall be consistent with the provisions of the Plan.
(b) The Plan Administrator, the Administrative Committee, the
Trustee, the Investment Committee, and any other named fiduciary may each employ
counsel, agents, and such clerical and accounting services as it may require in
carrying out its responsibilities under the Plan. All fiduciaries shall be
entitled to rely upon tables, valuations, certificates, opinions, and reports
furnished by any actuary, accountant, or legal counsel appointed under the
provisions of the Plan.
(c) The Plan Administrator shall keep in convenient form such
personnel data as may be necessary for the Plan. The Plan Administrator shall
prepare, distribute, and file such reports and notices as may be required by
applicable law or regulations.
(d) The Plan Administrator shall control and manage the Plan
assets to the extent it has not delegated its power to do so to the Investment
Committee. Such delegation of power may include the right to appoint and remove
investment managers and Trustees. Such delegation may be accomplished by a
separate instrument or by appropriate provisions in the Trust.
(e) The members of the Plan Administrator, the Investment
Committee, and the Trustee shall use that degree of care, skill, prudence and
diligence that a prudent person acting in a like capacity and familiar with such
matters would use in his conduct of a similar Situation. A member of the Plan
Administrator, the Investment Committee, or the Trustee shall not be liable for
the breach of fiduciary responsibility of another fiduciary unless (1) he
participates knowingly in, or knowingly undertakes to conceal, an act or
omission of such other fiduciary, knowing such act or omission is a breach; or
(2) by his failure to discharge his duties solely in the interest of Members and
Beneficiaries for the exclusive purpose of providing their benefits and
defraying reasonable expenses of administering the Plan not met by the Company,
he has enabled such other fiduciary to commit a breach; or (3) he has knowledge
of a breach by such other fiduciary and does not make reasonable efforts to
remedy the breach; or (4) if the Plan Administrator, the Investment Committee,
or the Trustee improperly allocates among themselves or delegates to others, or
fails to properly review such allocation or delegation of fiduciary
responsibilities.
(f) The Company will indemnify and save harmless the members of
the Plan Administrator, the Investment Committee, the Trustee, and any person to
whom fiduciary responsibilities are delegated under this Plan 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.
(g) Each Trustee shall maintain accounts showing the fiscal
transactions of the Trust established hereunder. The Investment Committee shall
keep in convenient form such financial data as may be necessary for the Plan,
and shall annually cause to be prepared a balance sheet and statement of
financial transactions of the Plan and the Trust.
(h) Whenever, in the administration of the Plan, any discretionary
action is required, the authorized party shall exercise his authority in a
nondiscriminatory manner so that all persons similarly situated will receive
substantially the same treatment.
Section 14.05 - Named Fiduciaries
------------------
(a) The Board of Directors, the Plan Administrator, the
Administrative Committee and the Investment Committee shall each constitute
named fiduciaries as such term is defined in ERISA.
(b) Any committee of the Board of Directors or other fiduciary
appointed as a named fiduciary by the Board of Directors by resolution or
appointed by an appropriate instrument executed by an officer of the Company
thereunto authorized by resolution of the Board of Directors, shall also
constitute a named fiduciary in respect of the duty delegated to him or it in
such resolution or instrument.
Section 14.06 - Delegation
----------
Any named fiduciary designated herein or appointed as provided herein, unless
precluded from doing so by the terms of such appointment, may by appropriate
instrument designate any person (including any firm or corporation) to carry out
part or all of such fiduciary's responsibilities and upon such designation the
named fiduciary shall have no liability, except as imposed by applicable law,
for any act or omission of such person. The foregoing does not preclude any
other fiduciary to the extent allowed by ERISA and the terms of his appointment
from delegating part or all of such fiduciary's responsibilities with respect to
the Plan.
Section 14.07 - Multiple Capacities
--------------------
Any fiduciary may serve in more than one fiduciary capacity with respect to the
Plan.
ARTICLE XV - Amendments, Termination, Permanent Discontinuance of Contributions,
Merger or Consolidation
Section 15.01 - Amendments
----------
The Board of Directors, or the Administrative Committee, or the Investment
Committee or any delegatee of these Committees, to the extent authority to do so
is granted by the Board of Directors, may at any time and from time to time,
both retroactively and prospectively, modify or amend, in whole or in part, any
or all of the provisions of the Plan, including any modification in the Plan or
in the agreement or agreements establishing the trust as the Plan Administrator
shall deem to be necessary or advisable in order to obtain the qualification or
exemption, or to maintain the qualification or exemption of the Plan and the
Trust, under the Code to comply with ERISA, provided, however, that no such
modification or amendment shall make it possible for any part of the funds of
the Plan to be used for, or diverted to, purposes other than for the exclusive
benefit of Members, spouses, former Members, retired Members or Beneficiaries
under the Plan; that no modification or amendment shall be made which has the
effect of decreasing retroactively the Accounts of any Member or of reducing the
non-forfeitable percentage of the Company Matching Contribution Account of a
Member below the non-forfeitable percentage thereof computed under the Plan as
in effect on the later of the date on which the amendment is adopted or becomes
effective.
Section 15.02 - Termination or Permanent Discontinuance of Contributions
-------------------------------------------------------------
The Company may by action of its Board of Directors terminate the Plan with
respect to all participating companies or any of them or direct complete
discontinuance of contributions hereunder by all or any of the participating
companies for any reason at any time. In case of such termination or complete
discontinuance of contributions hereunder, there shall automatically vest in the
appropriate Members non-forfeitable rights to the Company Matching Contributions
credited to their Accounts.
Section 15.03 - Partial Termination
--------------------
In the event of a partial termination of the Plan, the provisions of Section
15.02 shall be applicable only to the Members affected by such partial
termination.
Section 15.04 - Benefits in Case of Merger or Consolidation
-------------------------------------------------
The Plan may not be merged or consolidated with, nor may its assets or
liabilities be transferred to, any other plan unless each Member, spouse, former
Member, retired Member or Beneficiary under the Plan would, if the resulting
plan were then terminated, receive a benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation, or transfer if the Plan had been terminated.
ARTICLE XVI - Loans
Section 16.01 - Loans
-----
In the event of financial necessity, a Member may make application to the Plan
Administrator in writing to borrow from the Trust Fund and the Plan
Administrator may in its sole discretion permit such a loan upon the conditions
hereinafter specified. The authority herein granted to the Plan Administrator
to approve loans from the Trust Fund is for the purpose of assisting a Member to
meet special situations and shall not be used as a means of distributing
benefits before they otherwise become due. Loans shall be granted in a uniform
and non-discriminatory manner and shall be made on the following conditions:
(a) The amount of a loan to a Member (when added to the
outstanding balance of all other loans from the Plan to the Member) shall not
exceed the lesser of --
(1) Fifty percent (50%) of the vested amount in the
Member's Accounts, or
(2) $50,000, reduced by the excess (if any) of the highest
outstanding balance of loans from the Plan to the Member during the one-year
period ending on the day before the date on which such loan was made over the
outstanding balance of loans from the Plan on the date on which such loan was
made.
The maturity of a loan shall not exceed five (5) years, except in
the case of a loan to acquire or construct the Member's principal residence,
which shall mature in not more than ten (10) years.
If the Member is also covered under another qualified plan
maintained by the Company, the limitations of subsections (a)(1) and (2) shall
be applied as though all such qualified plans are one plan.
(b) A note shall be signed by the Member establishing regular
installment payments made by payroll deduction whenever possible and to the
extent permitted by law. The terms of such loans shall require substantially
level amortization over the term of the loan with payments not less frequently
than quarterly. Loans shall bear interest as specified in Section 16.02. Loans
shall be granted only if secured by the Member's vested Account Balances;
provided, however, that no more than fifty percent (50%) of the Member's vested
Account Balance may be pledged as collateral for the loan.
(c) In the event an installment payment is not paid within seven (7) days
following the due date, the Plan Administrator shall give written notice to the
Member sent to his last known address. If such installment payment is not made
within thirty (30) days thereafter, the Plan Administrator may proceed with such
actions as they deem necessary in order to preserve plan assets from loss
including, but not limited to, foreclosure, sale, or other disposition of the
security.
(d) In the event of the Termination of Employment of the Member before the
loan is repaid in full, the unpaid balance thereof, together with interest
thereon, shall become due and payable and the Trustee shall first satisfy the
indebtedness from the amount payable to the Member or to the Member's
Beneficiary before making any payments to the Member or to the Member's
Beneficiary.
(e) Loan repayments will be suspended under this Plan as permitted under
Code Section 414(u).
Section 16.02 - Interest Rates
---------------
Interest rates for Plan loans shall be regularly reviewed and adjusted in
conformity with interest rates which, in the judgment of the Plan Administrator,
are commensurate with rates charged by commercial lenders for similar types of
loans. The interest rate applicable to a Plan loan shall be fixed as of the
date the application for such a loan is received by the Plan Administrator or
its delegatee, and shall not be subject to change or renegotiation after such
date.
Section 16.03 - Other Rules
------------
In addition to the foregoing, the Plan Administrator shall prescribe such rules
and procedures as it may deem appropriate, including, without limitation, the
imposition of loan application fees, rules and procedures by which the making of
loans may be terminated, suspended or restricted, and the requirement of a
spousal consent to loans of married Members, if and to the extent deemed by the
Plan Administrator to be necessary or desirable in order to effect compliance
with applicable laws and regulations or to provide for effective administration
of such loans.
ARTICLE XVII - Miscellaneous
Section 17.01 - Benefits Payable from Trust Fund
------------------------------------
All persons with any interest in the Trust Fund shall look solely to the Trust
Fund for any payments with respect to such interest.
Section 17.02 - Elections
---------
Elections hereunder shall be made by a Member in writing by the completion and
delivery to the Plan Administrator of forms prescribed by the Plan Administrator
for such purposes, within the time limits set forth hereunder with respect to
each such election or, if no time limit is set forth, such limit as may be
established by the Plan Administrator.
Section 17.03 - No Right to Continued Employment
------------------------------------
Neither the establishment of the Plan nor the payment of any benefits thereunder
nor any action of the Company, the Board of Directors, the Plan Administrator or
the Trustee shall be held or construed to confer upon any person any legal right
to be continued in the employ of the Company.
Section 17.04 - Inalienability of Benefits and Interest
-------------------------------------------
No benefit payable under the Plan or interest in the Trust Fund shall be subject
in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any such attempted action shall be void and no such
benefit or interest shall be in any manner liable for or subject to debts,
contracts, liabilities, engagements or torts of any Member or Beneficiary. If
any Member or Beneficiary shall become bankrupt or shall attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge any benefit payable
under the Plan or interest in the Trust Fund, then to the extent permitted by
law, the Plan Administrator in its discretion may hold or apply such benefit or
interest or any part thereof to or for the benefit of such Member, or his
Beneficiary, his spouse, children, blood relatives, or dependents, or any of
them, in such manner and in such proportions as the Plan Administrator may
consider proper. Notwithstanding the foregoing, any Member may direct that
benefits payable pursuant to Article VIII from the Trust Fund shall be paid to
the trustee of a trust created by him for his own benefit or for the benefit of
his immediate family.
Notwithstanding any provision in the Plan to the contrary, the Plan shall make
all payments required by a qualified domestic relations order within the meaning
of Code Section 414(p), including distributions required or permitted by the
qualified domestic relations order to an alternate payee even though such
payments are with respect to a Member who has not separated from service and
which commence before the Member has attained the earliest retirement age under
the Plan; provided, however, the present value of the benefit to be paid to the
alternate payee (1) does not exceed $5,000; or (2) exceeds at least $5,000 and
the alternate payee consents in writing to such earlier distribution. The Plan
Administrator shall establish a procedure to determine the qualified status of a
domestic relations order and to administer distributions under such a qualified
order.
Section 17.05 - Payments for Exclusive Benefits of Members
-----------------------------------------------
Payments of benefits in respect of the interest of a Member under the Plan to
any person other than such Member in accordance with the provisions of the Plan
shall be deemed to be for the exclusive benefit of such Member.
Section 17.06 - Missouri Law to Govern
-------------------------
All questions pertaining to the construction, regulation, validity and effect of
the provisions of the Plan shall be determined in accordance with the laws of
the State of Missouri, except as provided in Section 514 of ERISA.
Section 17.07 - No Guarantee
-------------
Neither the Company nor the Trustee guarantees the Trust Fund in any manner
against loss or depreciation.
Section 17.08 - Address of Record
-------------------
Each individual or entity with an actual or potential interest in the Plan shall
file and maintain a current record address with the Plan. Communications mailed
by the Company, trustee, or Plan Administrator to such record address fulfills
all obligations to provide required information to Members, including former
employees and Beneficiaries, in regard to the Plan.
If no record address is filed, it may be presumed that the address used by the
Company in forwarding statements of a Member's Account is the record address.
Section 17.09 - Participating Units
--------------------
The Board of Directors or the Plan Administrator, to the extent authority to do
so is granted to the Plan Administrator by the Board of Directors, may include a
designated unit of the Employees of an Affiliated Company in the Plan as
employed in a Participating Unit upon appropriate action by such Affiliated
Company necessary to adopt the Plan. Any such company may terminate its
participation in the Plan with respect to a designated unit of its employees
upon appropriate action by it, in which event the funds of the Plan held on
account of Members in the employ of such company and any unpaid balances of the
Accounts of Members who have separated from the employ of such company, shall be
determined by the Plan Administrator and shall be distributed as provided in
Section 15.02 in the event of termination of the Plan, held and distributed in
accordance with the terms of the Plan governing treatment of Members transferred
from Covered Service, or shall be segregated by the Trustee as a separate trust
fund, pursuant to direction to the Trustee by the Plan Administrator, continuing
the Plan as a separate plan for such employees of such company under which the
board of directors of such company shall succeed to all the powers and duties of
the Board of Directors, including the appointment of the members of the Plan
Administrator.
Section 17.10 - Headings
--------
Headings of Articles and Sections of the Plan are inserted for convenience of
reference. They constitute no part of the Plan.
Section 17.11 - Use of Masculine Terms
-------------------------
As used herein, masculine terms shall include the feminine wherever appropriate.
Section 17.12 - Payment of Expenses
---------------------
(a) Direct charges and expenses arising out of the purchase or
sale of securities, and taxes levied on or measured by such transactions shall
be charged against the Investment Fund or Funds for which the transaction took
place.
(b) To the extent permitted by law, all other expenses reasonably
incurred in administering the Plan, including expenses of the Plan Administrator
and the Trustee, fees for legal services, all taxes, if any, other than those
charged to the Funds, and the brokerage fees arising out of the purchase of
Common Stock for the Energizer ESOP Common Stock Fund and the reinvestment of
dividends on such Common Stock shall be charged to the Trust in the manner
determined by the Plan Administrator.
Section 17.13 - Rollover Contributions
-----------------------
(a) An Employee, whether or not he would otherwise be a Member in
the Plan, may contribute a Rollover Contribution to the Trust by delivery of
such contribution to the Trustee, provided that the contribution qualifies as a
rollover contribution within the meaning of Code Section 402(a) which the Plan
may accept.
(b) A Rollover Contribution shall be considered as a part of the
account of the Employee in this Plan, shall be fully vested and non-forfeitable,
and shall be accounted for separately from Company contributions.
ARTICLE XVIII - Claim Procedure
Section 18.01 - Initial Determination
----------------------
The initial determination of a Member's or Beneficiary's eligibility for, and
the amount of, a benefit shall be made by the Administrative Committee which
shall mail or deliver to each covered individual who has filed an effective
claim for a benefit a written statement of the amount of his benefit or a notice
of denial of his claim on or before the ninetieth (90th) day following the
Administrative Committee 's receipt of such claim. If special circumstances
require additional time for processing the claim, the Administrative Committee
may delay issuing its statement or notice for an additional ninety (90) days
provided that the Member or Beneficiary is notified of the circumstances
necessitating the delay and the date the Administrative Committee expects to
render its final opinion. A claim for benefits is not effective unless filed on
forms prescribed by the Administrative Committee. Each notice of whole or
partial denial of claimed benefits shall set forth the specific reasons for the
denial, the time within which an appeal must be made by the Member or
Beneficiary or his duly authorized representative, and shall contain such other
information as may be required by applicable law. If a statement or notice is
not issued within the prescribed period, the claim shall be deemed denied.
Section 18.02 - Review
------
Each Member or Beneficiary whose claim for benefits has been wholly or partially
denied shall have such rights to review documents and submit comments as the
Administrative Committee may provide, and shall also have the right to request
the Administrative Committee to review such denial; such request shall be made
on forms prescribed by the Administrative Committee. A request for review shall
be filed by the Member or Beneficiary or his duly authorized representative on
or before the sixtieth (60th) day following the earlier of the Member or
Beneficiary's receipt of notice of denial of his claim or the expiration of the
prescribed period for issuing a statement of benefits or notice of denial. The
Administrative Committee shall issue a written statement on or before the
sixtieth (60th) day following its receipt of such request stating the
Administrative Committee's decision on review and the reasons therefor,
including specific references to pertinent Plan provisions on which the decision
is based, and any other information required by applicable law. If special
circumstances require additional time for processing such review, the
Administrative Committee may delay issuing its decision for an additional sixty
(60) days provided that the Member or Beneficiary is notified of such
circumstances and the date the Administrative Committee expects to render its
final decision. If the decision is not issued within the prescribed period, the
appeal shall be deemed denied. No Member or Beneficiary shall have recourse to
courts of law until the administrative review process set forth herein has been
completed.
ARTICLE XIX - Limitation on Contributions
Section 19.01 - Maximum Annual Additions
--------------------------
(a) The Annual Addition (as defined in subsection (c) below) for a
---------------
Member with respect to a Limitation Year (as defined in subsection (e) below)
shall not exceed the lesser of--
(1) $30,000 or such higher annual amount specified by the
Department of the Treasury to reflect increases in the cost-of-living, effective
January 1 of each year; or
(2) Twenty-five percent (25%) of the Member's Compensation
[as defined in subsection (f)].
(b) (1) If a Member is, or was, covered under a qualified
defined benefit plan maintained by the Company, the sum of the Member's Defined
Benefit Fraction and Defined Contribution Fraction may not exceed 1.0 in any
Limitation Year.
(2) The Defined Benefit Fraction is a fraction, the numerator
----------------------------
of which is the sum of the Member's Projected Annual Benefits under all
qualified defined benefit plans (whether or not terminated) maintained by the
Company and the denominator of which is the lesser of--
(A) 1.25 times the dollar limitation of Code Section
415(b) (1)(A) in effect for each Limitation Year, or
(B) 1.4 times the Member's average Compensation for the
three consecutive Plan Years during which the Member both was an active
participant in the Plan and had the greatest aggregate Compensation.
Projected Annual Benefit means the annual benefit to which the
Member would be entitled under the terms of a defined benefit plan, if the
Member continued employment until normal retirement age (or current age, if
later) and the Member's Compensation for the Limitation Year and all other
relevant factors used to determine such benefit remained constant until normal
retirement age (or current age, if later).
(3) The Defined Contribution Fraction is a fraction, the
-------------------------------
numerator of which is the sum of the Annual Additions to the Member's account
under all qualified defined contribution plans (whether or not terminated)
maintained by the Company or a Commonly Controlled Entity of the Company for the
current and all prior Limitation Years, and the denominator of which is the sum
of the lesser of the following amounts determined for such year and for each
prior year of service with the Company or a Commonly Controlled Entity--
(A) 1.25 times the dollar limitation in effect under
Code Section 415(c)(1)(A) for such year [determined without regard to Code
Section 415(e)(6)], or
(B) 1.4 times the amount which may be taken into account
under Code Section 415(c)(1)(B).
In calculating the Defined Contribution Fraction, the Plan
Administrator may, at its discretion, make the election described in Code
Section 415(e)(6).
If the Plan satisfied the applicable requirements of Section 415 of the Code as
in effect for all Limitation Years beginning before January 1, 1987, an amount
shall be subtracted from the numerator of the Defined Contribution Fraction (not
exceeding such numerator) as prescribed by the Secretary of the Treasury so that
the sum of the Defined Benefit Fraction and the Defined Contribution Fraction
does not exceed 1.0 for such Limitation Year.
(c) Annual Addition means the sum of the following amounts for a
----------------
Limitation Year with respect to each Member--
(1) Before-Tax Matched Contributions
(2) Company Matching Contributions
(3) Before-Tax Unmatched Contributions
(4) After-Tax Supplemental Contributions
(5) Forfeitures
(6) Similar amounts under other qualified defined
contribution plans maintained by the Company, and
(7) Amounts allocated to a post-retirement medical account
described in Code Section 415(1)(2) or Code Section 419A(d).
Annual additions shall include excess contributions as defined in Code Section
401(k)(8) of the Code, excess aggregate contributions as defined in Code Section
401(m)(6)(B), and excess deferrals as described in Code Section 402(g),
regardless of whether such amounts are distributed or forfeited.
Rollover Contributions, repaid distributions, restored forfeitures pursuant to
Section 13.01, and loan payments shall not be treated as Annual Additions.
The Annual Addition for any Limitation Year beginning before January 1, 1987
shall not be recomputed to treat all employee contributions as an Annual
Addition.
(d) For the purpose of this section, Company shall include a
Commonly Controlled Entity as defined in Section 1.11, except that in applying
Section 414(b), the phrase "more than fifty percent (50%)" shall be substituted
for the phrase "at least eighty percent (80%)" each place it appears in Code
Section 1563(a)(1).
(e) "Limitation Year" means the Plan Year.
(f) For the purposes of this section, "Compensation" means
compensation as defined in Treas. Reg. 1.415-2(d) (or any regulation which
replaces or supersedes such regulation) for purposes of the limitations on
benefits and contributions under qualified plans.
(g) If, for any Plan Year, it is necessary to limit the allocation
of an amount to a Member's Account to comply with subsection (a), the Plan shall
limit such allocation by reducing contributions in the following order -
(1) first, to the extent necessary, After-Tax Supplemental
Contributions and any earnings thereon;
(2) second, to the extent necessary, the Before-Tax Unmatched
Contributions, if any, made on his behalf and any earnings thereon;
(3) third, to the extent necessary, the amount of the
Before-Tax Matched Contributions made on his behalf and any earnings thereon.
The Company Matching Contributions made with respect to such Before-Tax Matched
Contributions and any earnings thereon shall be treated as though they were
forfeitures to the extent necessary and as soon as administratively feasible;
and
(4) fourth, to the extent necessary, other Company or
Commonly Controlled Entity contributions made to other qualified defined
contribution plans.
If the limitations of subsection (b) are exceeded, the accrued benefit of the
Member under the defined benefit plan shall be reduced to the extent necessary
to satisfy the requirements of subsection (b).
ARTICLE XX - Top-Heavy Provisions
Section 20.01 - Application of Top-Heavy Provisions
--------------------------------------
(a) Except as provided in subsection (b)(2), if as of a
Determination Date, the sum of the amount of the Section 416 Accounts of Key
Employees and the Beneficiaries of deceased Key Employees exceeds sixty percent
(60%) of the amount of the Section 416 Accounts of all Members and
Beneficiaries, the Plan is top-heavy and the provisions of this Article shall
become applicable.
If any individual has not received any compensation (other than
benefits under a plan) from the Company or a Commonly Controlled Entity of the
Company at any time during the five-year period ending on the Determination
Date, the Section 416 Account of such individual or his Beneficiary shall be
excluded from all computations under this Article with respect to Plan Years
beginning after December 31, 1984. However, if such an individual returns to
employment with the Company or Commonly Controlled Entity, his Section 416
account shall be included in calculations under this section. The Section 416
Account of an individual who was a Key Employee but is not a Key Employee for
the Plan Year containing the Determination Date and the preceding four Plan
Years or the Section 416 Account of the Beneficiary of such an individual shall
be excluded from all computations under this Article.
(b) (1) If as of a Determination Date this Plan is part of an
Aggregation Group which is top-heavy, the provisions of this Article shall
become applicable. Top-heaviness for the purpose of this subsection shall be
determined with respect to the Aggregation Group in the same manner as described
in subsection (a) except that if the Aggregation Group includes a defined
benefit plan, the Section 416 Account shall include the present value of the
accrued benefit of a member or a beneficiary under such plan.
(2) If this Plan is top-heavy under subsection (a), but the
Aggregation Group is not top-heavy, this Article shall not be applicable.
(c) The Plan Administrator shall have responsibility to make all
calculations to determine whether this Plan is top-heavy. The Plan
Administrator may use a method which approximates the calculations described in
Section 20.01(a) provided that it mathematically proves that the Plan is not
top-heavy, such as a method which overstates the Section 416 Accounts with
respect to Key Employees and understates the Section 416 Accounts with respect
to non-Key Employees.
Section 20.02 - Definitions
-----------
(a) "Aggregation Group" means this Plan and all other plans
(including a frozen plan) maintained by the Company which covers a Key Employee
or his Beneficiary and any other plan which enables a plan covering a Key
Employee or his Beneficiary to meet the requirements of Code Sections 401(a)(4)
or 410. A terminated plan shall be included in an Aggregation Group if it was
maintained by the Company within the last five (5) years ending on the
Determination Date for the Plan Year in question and would, but for the fact it
was terminated, meet the conditions of the preceding sentence. In addition, at
the election of the Plan Administrator, the Aggregation Group may be expanded by
the company if such expanded Aggregation Group meets the requirements of Code
Sections 401(a)(4) and 410.
(b) "Determination Date" means the last day of the Plan Year
immediately preceding the Plan Year for which top-heaviness is to be determined.
(c) "Key Employee" means an Employee (or a former or deceased
Employee) who, for the Plan Year containing the Determination Date or any of the
four preceding Plan Years (including years before 1984), is:
(1) an officer of the Company or a Commonly Controlled Entity
of the Company having an annual Compensation for a Plan Year greater than one
hundred fifty percent (150%) of the amount in effect under Code Section
415(c)(1)(A) for the calendar year in which the Plan Year ends; provided,
however, that no more than the lesser of --
(A) 50 Employees, or
(B) the greater of (i) three Employees or (ii) ten
percent (10%) of the greatest number of employees of the company and its
Commonly Controlled Entities for the Plan Year containing the Determination Date
and the preceding four Plan Years shall be treated as officers, and such
officers shall be those with the highest annual Compensation in the five-year
period;
(2) one of the ten Employees having an annual Compensation in
excess of the amount in effect under Code Section 415(c)(1)(A) and owning (or
considered as owning within the meaning of Code Section 318) both more than
one-half percent (1/2%) interest in the Company and the largest interests in the
Company;
(3) a five-percent (5%) owner of the Company; or
(4) a one-percent (1%) owner of the Company having an annual
Compensation [as defined in Section 19.01(f)] of more than $170,000.
For the purpose of subsection (c)(1)(B)(ii), if ten percent (10%)
of the number of Employees is not an integer, the number shall be increased to
the nearest integer. The determination as to whether a person is an officer
shall be made on the basis of his actual authority and duties and without regard
to his title. For the purpose of subsection (c)(2), if two Employees have the
same interest in the Company, the Employee having the greater annual
Compensation from the Company, shall be treated as having a larger interest.
For the purpose of subsections (c) (3) and (c)(4), ownership shall be determined
in accordance with Code Section 416 (i)(1)(B) and (C).
(d) "Section 416 Account" means the sum of:
(1) the amount credited to a Member's or Beneficiary's
Account under this Plan as of the most recent Valuation Date occurring within
the twelve (12) month period ending on the Determination Date (or his account
under another qualified defined contribution plan which is part of an
Aggregation Group) including uncontributed amounts due as of such Valuation Date
but which are actually contributed on or before the Determination Date;
(2) the present value of the accrued benefit credited as of a
Determination Date to a Member or Beneficiary under a qualified defined benefit
plan which is part of an Aggregation Group; and
(3) the amount of distributions to the Member or Beneficiary
during the five-year period ending on the Determination Date, including a
distribution under a terminated plan which, if it had not been terminated, would
have been required to be included in an Aggregation Group, a distribution of
Employee contributions, and a distribution made before January 1, 1984, but
excluding a distribution which is a tax-free rollover contribution (or similar
transfer) that is not initiated by the Member or that is contributed to a plan
which is maintained by the Company; reduced by--
(4) the amount of a rollover contribution (or similar
transfer) which is accepted by this Plan (or a plan forming part of an
Aggregation Group) after December 31, 1983 and which was initiated by the Member
and derived from a plan not maintained by the Company or a Commonly Controlled
Entity of the Company, and the earnings on such rollover contribution.
Section 20.03 - Minimum Contribution
---------------------
(a) If this Plan is determined to be top-heavy under the
provisions of Section 20.01, with respect to each Member who is not a Key
employee and is an Employee on the last day of the Plan Year, the sum of
Employer Contributions (other than Before-Tax Contributions), forfeitures
treated as Employer Contributions under this Plan, and under all qualified
defined contribution plans in the Aggregation Group shall not be less than three
percent (3%) of such Member's Compensation [as defined in Section 19.01(f)].
Notwithstanding the provisions of Section 9.02, contributions made pursuant to
this Section shall be fully vested at all times. This Section shall not be
applicable with respect to a Member who is also covered under a defined benefit
plan maintained by the Company which provides the benefit specified by Code
Section 416(c)(1).
(b) The contribution rate specified in subsection (a) shall not
exceed the percentage at which Employer Contributions and forfeitures are
allocated under the Plan or the plans of the Aggregation Group to the account of
the Key Employee for whom such percentage is the highest for the Plan Year. For
the purpose of this subsection, the percentage for each Key Employee shall be
determined by dividing the Employer Contributions and forfeitures for the Key
Employee by the amount of his total compensation for the year not in excess of
$200,000 [as adjusted by the Secretary of the Treasury under Code Section
416(d)]. This subsection shall not apply if this Plan is required to be
included in an Aggregation Group and the Plan enables a defined benefit plan
which is part of the Aggregation Group to meet the requirements of Code Section
401(a)(4) or 410.
Section 20.04 - Limit on Annual Additions: Combined Plan Limit
----------------------------------------------------
(a) If this Plan is determined to be top-heavy under Section
20.01, Section 19.01(b) of this Plan shall be applied by substituting 1.0 for
1.25. The transitional rule of Code Section 415(e)(6)(B)(i) shall be applied by
substituting "$41,500" for "$51,875".
(b) Subsection (a) shall not be applicable if--
(1) Section 20.03 is applied by substituting "four percent
(4%)" for "three percent (3%) ", and
(2) this Plan would not be top-heavy if "ninety percent
(90%)" is substituted for "sixty percent (60%)" in Section 20.01.
(c) If, but for this subsection (c), subsection (a) would begin to
apply with respect to the Plan, the application of subsection (a) shall be
suspended with respect to a Member so long as there are--
(1) no Company contributions, forfeitures, or voluntary
nondeductible contributions allocated to such Member, and
(2) no accruals under a qualified defined benefit plan for
such Member.
IN WITNESS WHEREOF, Energizer Holdings, Inc. has caused these presents to be
executed by the undersigned representative of the Company effective as of the
first day of April, 2000, or as otherwise indicated.
ENERGIZER HOLDINGS, INC.
By __________________________________
Name: __________________________________
Title: __________________________________
Energizer Holdings, Inc.
800 Chouteau
St. Louis, Missouri 63102
Re: Energizer Holdings, Inc. 2000 Savings Investment 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 5,000,000 shares of the Company's
common stock, $.01 par value (the "Shares"), as provided in the Energizer
Holdings, Inc. 2000 Savings Investment Plan (the "Plan"), together with an
indeterminate amount of interests to be offered and sold pursuant to 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 Shares 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 duly and validly issued and will be fully paid and nonassessable.
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
CONSENT OF INDEPENDENT CERTIFIED PUBLIC 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
March 30, 2000
