Form 8-K

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CVoGNiGU4GcFUdw4uU7GjJ9t4fyex1EuylDAVq7c1IAu7x7hL6BGISp/itduhY2/ +nSj5Qq7vJOE8Ffq+wTNMA== 0001193125-05-072134.txt : 20050407 0001193125-05-072134.hdr.sgml : 20050407 20050407164544 ACCESSION NUMBER: 0001193125-05-072134 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20050401 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050407 DATE AS OF CHANGE: 20050407 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RAYOVAC CORP CENTRAL INDEX KEY: 0001028985 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 222423556 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-13615 FILM NUMBER: 05739588 BUSINESS ADDRESS: STREET 1: 6 CONCOURSE PARKWAY STREET 2: SUITE 3300 CITY: ATLANTA STATE: 2Q ZIP: 30328 BUSINESS PHONE: 7708296200 MAIL ADDRESS: STREET 1: 6 CONCOURSE PARKWAY STREET 2: SUITE 3300 CITY: ATLANTA STATE: 2Q ZIP: 30328 8-K 1 d8k.htm FORM 8-K Form 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report:

April 1, 2005

(Date of earliest event reported)

RAYOVAC CORPORATION

(Exact Name of Registrant as Specified in Charter)

Wisconsin

001-13615

22-2423556

(State or other Jurisdiction

of Incorporation)

(Commission File No.)

(IRS Employer

Identification No.)

Six Concourse Parkway, Suite 3300, Atlanta, Georgia 30328

(Address of principal executive offices, including zip code)

(770) 829-6200

(Registrant’s telephone number, including area code)

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

Employment Agreements

Effective April 1, 2005, Rayovac Corporation (the “Company”) entered into amended and restated employment agreements with certain of the Company’s executive officers, including Kent J. Hussey, the Company’s President and Chief Operating Officer, and Kenneth V. Biller, the Company’s President – Global Operations. Also effective April 1, 2005, one of the Company’s German subsidiaries entered into an amended and restated employment agreement with Remy E. Burel, the Company’s President, Europe & ROW. The following description of the amended and restated employment agreements with Messrs. Hussey, Biller and Burel is qualified in its entirety by reference to the terms of such agreements, which are filed as Exhibits 10.1, 10.2 and 10.3 hereto, respectively.

The amended and restated employment agreements with Messrs. Hussey and Biller expire on September 30, 2008. Mr. Burel’s employment agreement has no specified term, but either party may terminate the agreement at any time upon six months’ notice. Each of these employment agreements provides that the executive officer has the right to resign and terminate his respective employment agreement at any time upon at least 60 days’ notice (six months’ notice in the case of Mr. Burel). Upon such resignation, the Company must pay any unpaid base salary through the date of termination to the resigning executive officer.

Except in the case of Mr. Burel’s employment agreement, each employment agreement provides generally that upon the Company’s termination of the executive officer’s employment without cause or for death or disability, the Company will pay to the terminated executive officer, or such executive officer’s estate, two times the executive officer’s base salary and annual bonus, to be paid out over the following 24 months. Mr. Burel is entitled to three times his base salary and annual bonus, to be paid out over the 36 months following such termination. Messrs. Hussey and Biller’s employment agreements also provide that if the executive officer resigns upon the occurrence of specified circumstances that would constitute a “constructive termination” (as defined therein), the executive officer’s resignation shall be treated as a termination by the Company without cause.

Under each employment agreement, the Company has the right to terminate the executive officer’s employment for “cause” (as defined therein), in which event the Company shall be obligated to pay to the terminated executive officer any unpaid base salary accrued through the date of termination. Each agreement also provides that, during the term of the agreement or the period of time served as an employee or director, and for one year thereafter, the executive officer shall not provide services of the same or similar kind that he provides to the Company, have a significant financial interest in any competitor of the Company, or solicit any of the Company’s customers or employees.

Under their respective employment agreements, beginning April 1, 2005, Mr. Hussey became entitled to a base salary of $525,000 per annum, Mr. Biller became entitled to a base salary of $450,000 per annum, and Mr. Burel became entitled to a base salary of Euro 375,000. The Company’s Board of Directors will review these base salaries from time to

time and may increase them in its discretion. Each executive officer also is entitled to an annual bonus based upon the Company’s achieving certain annual performance goals established by the Board of Directors.

Pursuant to their employment agreements, Messrs. Hussey, Biller and Burel are entitled to participate in the Company’s equity-based compensation plans. These executive officers, among other officers and employees, received restricted stock grants under the 2004 Rayovac Incentive Plan (the “Plan”) on April 1, 2005. On this date, Mr. Hussey received 40,000 shares of the Company’s common stock and Messrs. Biller and Burel each received 25,000 shares. All of the shares are subject to time-based restrictions. With respect to these shares received by Messrs. Hussey and Biller, the restrictions on 50% of the shares are scheduled to lapse on October 1, 2006 and 50% scheduled to lapse on October 1, 2007. With respect to the shares received by Mr. Burel, the restrictions on all shares are scheduled to lapse on October 1, 2008. In addition, restrictions also lapse on all grants in the event of a change in control of the Company, as defined in the Plan. Upon the termination of a recipient’s employment with the Company for any reason, such recipient shall forfeit to the Company all shares for which restrictions have not lapsed as of the date of such termination.

The form of Restricted Stock Award Agreement pursuant to which the preceding restricted stock grants were made is attached as Exhibit 10.4 hereto, and the preceding description of the terms of these restricted stock grants is qualified in its entirety by reference to the terms of such agreement. The Restricted Stock Award Agreements incorporate the terms of the Plan, which was filed as Exhibit 10.24 to the Company’s quarterly report on Form 10-Q for the period ended June 27, 2004.

Superior Achievement Program Restricted Stock Awards

Also on April 1, 2005, the Company made grants of restricted stock pursuant to restricted stock award agreements (the “Superior Achievement Award Agreements”) to certain Company employees, including each of Messrs. Hussey, Biller and Burel. The Superior Achievement Award Agreements incorporate the terms of the Plan. Pursuant to the Superior Achievement Award Agreements, Mr. Hussey received 35,638 shares of the Company’s common stock, par value $.01, Mr. Biller received 30,547 shares and Mr. Burel received 23,274 shares. The form of Superior Achievement Award Agreement pursuant to which these restricted stock grants were made is attached as Exhibit 10.5 hereto, and the foregoing description of the terms of these restricted stock grants is qualified in its entirety by reference to the terms of such agreement.

The shares of restricted stock granted pursuant to the Superior Achievement Award Agreements are subject to performance-based restrictions as well as time-based restrictions. The restrictions on all of the shares issued pursuant to the Superior Achievement Award Agreements are scheduled to lapse as of February 7, 2008 if certain company performance goals are achieved for the period beginning February 7, 2005 and ending December 31, 2007. The performance measures include measures related to the Company’s realization of cost savings related to its

recent acquisitions, earnings per share, cash flow. To the extent that the required performance goals are not satisfied, so that the restrictions on the shares do not lapse as of February 7, 2008, the restrictions on any remaining shares will lapse as of February 7, 2012, provided that the recipient’s employment with the Company or its subsidiaries has not terminated prior to that date. In addition, restrictions also lapse on all grants in the event of a change in control of the Company, as defined in the Plan. Upon the termination of a recipient’s employment with the Company for any reason, such recipient shall forfeit to the Company all shares for which restrictions have not lapsed as of the date of such termination.

Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS.

(a)	Financial Statements of Businesses Acquired

Not applicable.

(b)	Pro Forma Financial Information

Not applicable.

(c)	Exhibits


Exhibit Number		Description of Exhibit
10.1		Amended and Restated Employment Agreement, effective as of April 1, 2005, by and between the Company and Kent J. Hussey.

10.2		Amended and Restated Employment Agreement, effective as of April 1, 2005, by and between the Company and Kenneth V. Biller.

10.3		Amended and Restated Registered Director’s Agreement, effective as of April 1, 2005, by and between Rayovac Europe GmbH and Remy Burel.

10.4		Form of Restricted Stock Award Agreement under the 2004 Rayovac Incentive Plan.

10.5		Form of Superior Achievement Program Restricted Stock Award Agreement under the 2004 Rayovac Incentive Plan.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


Date: April 7, 2005	RAYOVAC CORPORATION

	By:	/s/ Randall J. Steward
	Name:	Randall J. Steward
	Title:	Executive Vice President and Chief Financial Officer

EXHIBIT INDEX


Exhibit Number		Description of Exhibit
10.1		Amended and Restated Employment Agreement, effective as of April 1, 2005, by and between the Company and Kent J. Hussey.

10.2		Amended and Restated Employment Agreement, effective as of April 1, 2005, by and between the Company and Kenneth V. Biller.

10.3		Amended and Restated Registered Director’s Agreement, effective as of April 1, 2005, by and between Rayovac Europe GmbH and Remy Burel.

10.4		Form of Restricted Stock Award Agreement under the 2004 Rayovac Incentive Plan.

10.5		Form of Superior Achievement Program Restricted Stock Award Agreement under the 2004 Rayovac Incentive Plan.

EX-10.1 2 dex101.htm AMENDED & RESTATED EMPLOYMENT AGREEMENT BETWEEN THE COMPANY & KENT J. HUSSEY Amended & Restated Employment Agreement between the Company & Kent J. Hussey

Exhibit 10.1

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

THIS AMENDED AND RESTATED AGREEMENT (this “Agreement”) is entered into as of the 1st day of April, 2005, by and between Rayovac Corporation, a Wisconsin corporation (the “Company”), and Kent J. Hussey (the “Executive”).

WHEREAS, the Company and the Executive wish to amend and restate the provisions of the Executive’s Employment Agreement with the Company, dated October 1, 2002, as the Company desires to employ the Executive upon the terms and conditions set forth herein;

WHEREAS, the Executive is willing and able to accept such employment on such terms and conditions; and

WHEREAS, Executive’s initial or continued employment with the Company is expressly conditioned upon the agreement by the Executive to the terms and conditions of such employment as contained in this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein (promises that include benefits to which Executive would not otherwise be entitled or receive), and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive hereby agree as follows:

Employment Duties and Acceptance. The Company hereby employs the Executive, and the Executive agrees to serve and accept employment, as the President and Chief Operating Officer of the Company, reporting directly to the Chairman and Chief Executive Officer of the Company (the “CEO”). In connection therewith, as President and Chief Operating Officer, the Executive shall have general supervision of the day-to-day affairs of the Company and the supervision and direction of the actions of certain other officers of the Company, subject to the supervision of the Chairman and CEO. During the Term (as defined below), the Executive shall devote substantially all of his working time to such employment and appointment and shall devote his best efforts to advance the interests of the Company.

Term of Employment. Subject to Section 4 hereof, the Executive’s employment and appointment hereunder shall be for a term commencing on the date hereof and expiring on September 30, 2008 (the “Term”). Upon expiration of the Term, this Agreement shall automatically extend for successive periods of one (1) year, unless the Executive or the Company shall give notice to the other at least ninety (90) days prior to the end of the Term (or any annual extension thereof) indicating that it does not intend to renew the Agreement.

3.	Compensation. In consideration of the performance by the Executive of his duties hereunder, the Company shall pay or provide to the Executive the following compensation which the Executive agrees to accept in full satisfaction for his services, it being understood that necessary withholding

taxes, FICA contributions and the like shall be deducted from such compensation:

(a)

Base Salary. The Executive shall receive a base salary equal to Five Hundred Twenty-Five Thousand Dollars ($525,000) per annum effective April 1, 2005 for the duration of the Term (“Base Salary”), which Base Salary shall be paid in equal monthly installments each year, to be paid monthly in arrears. The Board of Directors of the Company (the “Board”) will review from time to time the Base Salary payable to the Executive hereunder and may, in its discretion, increase the Executive’s Base Salary. Any such increased Base Salary shall be and become the “Base Salary” for purposes of this Agreement.

(b)

Bonus. The Executive shall receive a bonus for each fiscal year ending during the Term, payable annually in arrears, which shall be based on 75% of Base Salary, provided the Company achieves certain annual performance goals established by the Board from time to time (the “Bonus”). The Board may, in its discretion, increase the annual Bonus. Any such increased annual Bonus shall be and become the “Bonus” for such fiscal year for purposes of this Agreement.

(c)

Insurance Coverages and Pension Plans. The Executive shall be entitled to such insurance, pension and all other benefits as are generally made available by the Company to its executive officers from time to time, including, without limitation, any SERP and/or MERP.

(d)

Existing Stock Options and Restricted Stock Awards. All stock options and restricted stock awards previously granted to the Executive shall remain in full force and effect in accordance with their terms. If the Company implements a new stock plan in the future, the Executive may participate to the extent authorized by the Board.

(e)

New Restricted Stock Award. The Company shall grant the Executive restricted shares of the Company’s common stock as follows. On April 1, 2005, Executive shall be awarded 40,000 shares of the Company’s common stock, shares that will include restrictions prohibiting the sale, transfer, pledge, assignment or other encumbrance of such stock (“Restricted Shares”), provided, however, that restrictions on 50% of the Restricted Shares shall lapse on October 1, 2006 and the restrictions on the remaining 50% of the Restricted Shares shall lapse on October 1, 2007. Notwithstanding anything else set forth above, (i) restrictions on Restricted Shares shall also lapse on a change in control of the Company (as defined in the company’s stock plan governing such award) (“Change in Control”) and (ii) any unlapsed shares of Restricted Stock shall be forfeited to the Company in the event the Executive’s employment with the Company terminates for any reason prior to a Change in Control. Additional terms and conditions of such restricted stock award shall be set forth in an agreement with such terms and conditions being substantially similar (other than as set forth above) to the terms and conditions of previous restricted stock award grants to similarly situated Company executives.

(f)

Annual Restricted Stock Awards. Subject to approval by the Compensation Committee of the Board and the Board, on each October 1 during the term of this Agreement commencing October 1, 2005, the Executive shall be awarded that number of shares (rounded up to the nearest whole share) of the Company’s common stock with a Fair Market Value equal to One Hundred and Fifty Percent (150%) of the Base Salary then in effect. Each such award will provide for vesting in three (3) equal tranches on each December 1^st thereafter, beginning the year following the grant date, with (except as otherwise provided herein or in the applicable plan document) the vesting of Fifty Percent (50%) of each such vesting tranche to be subject to the Executive’s continued employment with the Company as of each applicable December 1^st and the remaining Fifty Percent (50%) of each such vesting tranche to be subject to the achievement of performance goals to be established by the Board from time to time (“Performance-Based Restricted Stock”), provided that One Hundred Percent (100%) of each outstanding vesting tranche shall vest upon a Change in Control. If the required performance goals are not met in any fiscal year, so that the restrictions on Performance-Based Restricted Stock scheduled to lapse for such year do not so lapse, the restrictions on such Performance-Based Restricted Stock will lapse the December 1 first following the originally scheduled lapse date. Notwithstanding anything else set forth above, (i) restrictions on such shares shall also lapse on a Change in Control and (ii) any unlapsed shares of restricted stock shall be forfeited to the Company in the event the Executive’s employment with the Company terminates for any reason prior to a Change in Control. Additional terms and conditions of such restricted stock award shall be set forth in an agreement with such terms and conditions being substantially similar (other than as set forth above) to the terms and conditions of previous restricted stock award grants to similarly situated Company executives.

(g)

Vacation. The Executive shall be entitled to four (4) weeks vacation each year.

(h)

Other Expenses. The Executive shall be entitled to reimbursement of all reasonable and documented expenses actually incurred or paid by the Executive in the performance of the Executive’s duties under this Agreement, upon presentation of expense statements, vouchers or other supporting information in accordance with Company policy. All expense reimbursements and other perquisites of the Executive are reviewable periodically by the Compensation Committee of the Board, if there be one, or the Board.

(i)

Automobile. The Company shall provide the Executive with the use of a leased automobile suitable for a President and Chief Operating Officer of a company similar to the Company. Unless the Executive’s employment is terminated by the Company for Cause, the Executive shall be entitled to purchase such automobile for $100 upon the earlier of (i) the expiration of the lease for such automobile or (ii) the termination of Executive’s employment.

(j)

D&O Insurance. The Executive shall be entitled to indemnification from the Company to the maximum extent provided by law, but not for any action, suit, arbitration or other proceeding (or portion thereof) initiated by the Executive, unless authorized or ratified by the Board. Such indemnification shall be covered by the terms of the Company’s policy of insurance for directors and officers in effect from time to time (the “D&O Insurance”). Copies of the Company’s charter, by-laws and D&O Insurance will be made available to the Executive upon request.

(k)

Legal Fees. The Company shall pay the Executive’s actual and reasonable legal fees incurred in connection with the preparation of this Agreement.

4.	Termination.

(a)

Termination by the Company with Cause. The Company shall have the right at any time to terminate the Executive’s employment hereunder without prior notice upon the occurrence of any of the following (any such termination being referred to as a termination for “Cause”):

(i)

the commission by the Executive of any deliberate and premeditated act taken by the Executive in bad faith against the interests of the Company;

(ii)

the Executive has been convicted of, or pleads nolo contendere with respect to, any crime (felony or less) the circumstances of which substantially relate to the circumstances, duties or responsibilities of Executive’s position with the Company;

(iii)

the current use of illegal drugs, misuse of legal drugs, or intoxication of Executive in the workplace or while performing his duties or responsibilities associated with his position, the Executive’s failure of a Company-related drug test, or the violation of any Company drug policy;

(iv)

the willful failure or refusal of the Executive to perform his duties as set forth herein or the willful failure or refusal to follow the direction of the CEO, provided such failure or refusal continues after thirty (30) days of the receipt of notice in writing from the CEO or of such failure or refusal, which notice refers to this Section 4(a) and indicates the Company’s intention to terminate the Executive’s employment hereunder if such failure or refusal is not remedied within such thirty (30) day period; or

(v)

the Executive breaches any of the terms of this Agreement or any other Agreement between the Executive and the

Company which breach is not cured within thirty (30) days subsequent to notice from the Company to the Executive of such breach, which notice refers to this Section 4(a) and indicates the Company’s intention to terminate the Executive’s employment hereunder if such breach is not cured within such thirty (30) day period.

If the definition of termination for “Cause” set forth above conflicts with such definition in the Executive’s time-based or performance- based stock option agreements (collectively, the “Stock Option Agreements”) or any agreements referred to therein, the definition set forth herein shall control.

(b)

Termination by Company for Death or Disability. The Company shall have the right at any time to terminate the Executive’s employment hereunder upon thirty (30) days prior written notice upon the Executive’s inability to perform his duties hereunder by reason of any mental, physical or other disability for a period of at least six (6) consecutive months (for purposes hereof, “disability” has the same meaning as in the Company’s disability policy), if within 30 days after such notice of termination is given, the Executive shall not have returned to the full-time performance of his duties. The Company’s obligations hereunder shall, subject to the provisions of Section 5(b), also terminate upon the death of the Executive.

(c)

Termination by Company without Cause. The Company shall have the right at any time to terminate the Executive’s employment for any other reason without Cause upon sixty (60) days prior written notice to the Executive.

(d)

Voluntary Termination by Executive. The Executive shall be entitled to terminate his employment and appointment hereunder upon sixty (60) days prior written notice to the Company. Any such termination shall be treated as a termination by the Company for “Cause” under Section 5, unless notice of such termination was given within sixty (60) days after a Change in Control, in which case such termination shall be treated in accordance with Section 5(c) hereof.

(e)

Constructive Termination by the Executive. The Executive shall be entitled to terminate his employment and appointment hereunder, without prior notice, upon the occurrence of a Constructive Termination. Any such termination shall be treated as a termination by the Company without Cause. For this purpose, a “Constructive Termination” shall mean:

(i)

a reduction in Base Salary (other than as permitted hereby);

(ii)

a reduction in annual Bonus opportunity;

(iii)

a change in location of office of more than seventy-five (75) miles from Atlanta, Georgia;

(iv)

unless with the express written consent of the Executive, (a) the assignment to the Executive of any duties inconsistent in any substantial respect with the Executive’s position, authority or responsibilities as contemplated by Section 1 of this Agreement or (b) any other substantial change in such position, including titles, authority or responsibilities from those contemplated by Section 1 of the Agreement; or

(v)

any material reduction in any of the benefits described in Section 3(c), (g), (h), (i) or (j) hereof.

For purposes of any stock option Agreements or restricted stock award agreements, Constructive Termination shall be treated as a termination of employment by the Company without “Cause.”

(f)

Notice of Termination. Any termination by the Company for Cause or by the Executive for Constructive Termination shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 8. For purposes of this Agreement, a “Notice of Termination” means a written notice given prior to the termination which (i) indicates the specific termination provision in this Agreement relied upon, (ii) sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (iii) if the termination date is other than the date of receipt of such notice, specifies the termination date of this Agreement (which date shall be not more than fifteen (15) days after the giving of such notice, unless a thirty-day notice is required pursuant to another section of this Agreement). The failure by any party to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Cause or Constructive Termination shall not waive any right of such party hereunder or preclude such party from asserting such fact or circumstance in enforcing its rights hereunder.

5.	Effect of Termination of Employment.

(a)

With Cause. If the Executive’s employment is terminated with Cause, the Executive’s salary and other benefits specified in Section 3 shall cease at the time of such termination, and the Executive shall not be entitled to any compensation specified in Section 3 which was not required to be paid prior to such termination; provided, however, that the Executive shall be entitled to continue to participate in the Company’s medical benefit plans to the extent required by law.

(b)

Without Cause, Death or Disability. If the Executive’s employment is terminated by the Company(a) without Cause or (b) by reason of death or disability, and the Executive executes a separation agreement with a release of claims agreeable to the Company (to the extent that the Executive is physically and mentally capable to execute such an agreement), then the Company shall pay the Executive the amounts and provide the Executive the benefits as follows:

(i)

The Company shall pay to the Executive as severance, an amount in cash equal to double the sum of (A) the Executive’s Base Salary, and (B) the annual Bonus (if any) earned by the Executive pursuant to any annual bonus or incentive plan maintained by the Company in respect of the fiscal year ending immediately prior to the fiscal year in which the termination occurs, such cash amount to be paid to the Executive ratably monthly in arrears over the 24-month period immediately following such termination. Notwithstanding the foregoing, if payment in accordance with the preceding sentence would subject the Executive to tax under section 409A of the Internal Revenue Code of 1986, as amended, then payment will be suspended until the first date as of which payment can be made without subjecting the Executive to such tax.

(ii)

For the greater of (i) the 24-month period immediately following such termination or (ii) the remainder of the Term, the Company shall arrange to provide the Executive and his dependents the additional benefits specified in Section 3(c) substantially similar to those provided to the Executive and his dependents by the Company immediately prior to the date of termination, at no greater cost to the Executive or the Company than the cost to the Executive and the Company immediately prior to such date. Benefits otherwise receivable by the Executive pursuant to this Section 5(b)(ii) shall cease immediately upon the discovery by the Company of the Executive’s breach of the covenants contained in Section 6 or 7 hereof. In addition, benefits otherwise receivable by the Executive pursuant to this Section 5(b)(ii) shall be reduced to the extent benefits of the same type are received by or made available to the Executive during the 24-month period following the Executive’s termination of employment (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive); provided, however, that the Company shall reimburse the Executive for the excess, if any, of the cost of such benefits to the Executive over such cost immediately prior to the date of termination.

(iii)

The Executive’s accrued vacation (determined in accordance with Company policy) at the time of termination shall be paid as soon as reasonably practicable.

(iv)

Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state, or local law and any additional withholding to which the Executive has agreed.

(v)

If the Executive’s employment with the Company terminates during the Term, the Executive shall not be required to seek other employment or to attempt in any way to reduce any amounts payable to the Executive by the Company pursuant to this Section 5.

(c)

Following Change in Control. If the Executive elects to terminate his employment within sixty (60) days following a Change in Control in accordance with Section 4(d), and the Executive executes a separation agreement with a release of claims agreeable to the Company (to the extent that the Executive is physically and mentally capable to execute such an agreement), then such termination by the Executive shall be treated as a termination by the Company without Cause, and the Executive shall be entitled to the compensation provided in Section 5(b) except that instead of the payment provided for in Section 5(b)(i)(B) hereof, the Executive shall be entitled to the annual Bonus (if any) earned pursuant to any annual bonus or incentive plan maintained by the Company in respect of the fiscal year in which such termination occurs, and he shall be entitled to the full amount of such Bonus even if he terminates his employment before the end of such fiscal year. Notwithstanding the foregoing, the Company may require that the Executive continue to remain in the employ of the Company for up to a maximum of six (6) months following the Change in Control (the “Post-Term Period”). The Company shall place the maximum cash payments payable pursuant to Section 5(b) (as modified by the provisions of this Section 5(c) above with respect to Section 5(b)(i)(B) hereof) in escrow with a commercial bank or trust company mutually acceptable to the Company and the Executive as soon as practicable following the Change in Control. For the Post-Term Period, the Company shall make the cash payments that would otherwise be required pursuant to Section 3 . At the expiration of the Post-Term Period, the Executive shall receive all cash amounts due the Executive from the amount held in escrow ratably monthly over the24-month period immediately following such termination (all such cash payments to be deducted from the amount placed in escrow) with the balance (if any) returned to the Company. If the Company does not require that the Executive remain in the employ of the Company, the Company shall pay the Executive all cash amounts payable pursuant to Section 5(b) (as modified by the provisions of this Section 5(c) above with respect to Section 5(b)(i)(B) hereof) ratably monthly over the 24-month period immediately following such termination (all such cash payments to be deducted from the amount placed in escrow) with the balance (if any) returned to the Company. Notwithstanding the foregoing, if payment in accordance with the preceding sentence would subject the Executive to tax under section 409A of the Internal Revenue Code of 1986, as amended, then payment will be suspended until the first date as of which payment can be made without subjecting the Executive to such tax.

The Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, and if the Executive does obtain other employment, all amounts payable by the Company under this Agreement shall remain fully due and payable.

(d)

Upon Retirement. If At the end of the Term or when Executive is no longer employed full time as President and Chief Operating Officer of

the Company (but remains employed in some capacity by the Company as mutually agreed to by Executive and the Company), then the Company shall pay the Executive the amounts and provide the Executive the benefits as follows:

(i)

all restrictions shall lapse on any of Executive’s restricted stock granted prior to the end of the Term, other than any restricted stock issued pursuant to the Super Bonus Program;

(ii)

Company shall reimburse Executive for the reasonable expenses associated with Executive’s tax preparation and financial planning services for a period of ten (10) years from the end of the Term; and

(iii)

For a period of ten (10) years from the end of the Term, the Company shall arrange to provide the Executive and his spouse with continuing medical, dental and life insurance benefits substantially similar to those provided to the Executive and his spouse by the Company immediately prior to the end of the Term, at no greater cost to the Executive than the cost to the Executive immediately prior to such date.

6.	Agreement Not to Compete.

(a)

The Executive agrees that during the Non-Competition Period (as defined below), he will not, directly or indirectly, in any capacity, either separately, jointly or in association with others, as an officer, director, consultant, agent, employee, owner, principal, partner or stockholder of any business, or in any other capacity, provide services of the same or similar kind or nature that he provides to the Company to, or have a financial interest in (excepting only the ownership of not more than 5% of the outstanding securities of any class listed on an exchange or the Nasdaq Stock Market), any competitor of the Company (which means any person or organization that is in the business of or makes money from designing, developing, or selling products or services similar to those products and services developed, designed or sold by the Company) The “Non-Competition Period” is (a) the longer of the Executive’s employment hereunder plus (b) a period of one (1) year thereafter. In recognition, acknowledgement and agreement that the Company’s business and operations extend throughout North America and beyond, the parties agree that the geographic scope of this covenant not to compete shall extend to North America.

(b)

Without limiting the generality of clause (a) above, the Executive further agrees that during the Non-Competition Period, he will not, directly or indirectly, in any capacity, either separately, jointly or in association with others, solicit or otherwise contact any of the Company’s customers with whom the Executive had contact, responsibility for, or had acquired confidential information about by virtue of his or her employment with the Company at any time during his or her employment, if such contact is for the general purpose of selling products that satisfy the same general needs as any products that the Company had available for sale to its customers during the Non-Competition Period.

(c)

The Executive agrees that during the Non-Competition Period, he shall not initiate contact in order to induce, solicit or encourage any person to leave the Company’s employ. Nothing in this paragraph is meant to prohibit an employee of the Company that is not a party to this Agreement from becoming employed by another organization or person.

(d)

If a court determines that the foregoing restrictions are too broad or otherwise unreasonable under applicable law, including with respect to time or space, the court is hereby requested and authorized by the parties hereto to revise the foregoing restrictions to include the maximum restrictions allowed under the applicable law.

(e)

For purposes of this Section 6 and Section 7, the “Company” refers to the Company and any incorporated or unincorporated affiliates of the Company.

7.	Secret Processes and Confidential Information.

(a)

The Executive agrees to hold in strict confidence and, except as the Company may authorize or direct, not disclose to any person or use (except in the performance of his services hereunder) any confidential information or materials received by the Executive from the Company and any confidential information or materials of other parties received by the Executive in connection with the performance of his duties hereunder. For purposes of this Section 7(a), confidential information or materials shall include existing and potential customer information, existing and potential supplier information, product information, design and construction information, pricing and profitability information, financial information, sales and marketing strategies and techniques and business ideas or practices. The restriction on the Executive’s use or disclosure of the confidential information or materials shall remain in force during the Executive’s employment hereunder and until the earlier of (x) a period of 2 (two) years thereafter or (y) such information is of general knowledge in the industry through no fault of the Executive or any agent of the Executive. The Executive also agrees to return to the Company promptly upon its request any Company information or materials in the Executive’s possession or under the Executive’s control. This Section 7(a) is not intended to preclude Executive from being gainfully employed by another. Rather, it is intended to prohibit Executive from using the Company’s confidential information or materials in any subsequent employment or employment undertaken that is not for the benefit of the Company during the identified period.

(b)

matters, whether or not patentable and whether or not reduced to practice, which are conceived or learned by the Executive during the period of the Executive’s employment with the Company, either alone or with others, which relate to or result from the actual or anticipated business or research of the Company or which result, to any extent, from the Executive’s use of the Company’s premises or property (collectively called the “Inventions”). The Executive acknowledges and agrees that all the Inventions shall be the sole property of the Company, and the Executive hereby assigns to the Company all of the Executive’s rights and interests in and to all of the Inventions, it being acknowledged and agreed by the Executive that all the Inventions are works made for hire. The Company shall be the sole owner of all domestic and foreign rights and interests in the Inventions. The Executive agrees to assist the Company at the Company’s expense to obtain and from time to time enforce patents and copyrights on the Inventions.

(c)

Upon the request of, and, in any event, upon termination of the Executive’s employment with the Company, the Executive shall promptly deliver to the Company all documents, data, records, notes, drawings, manuals and all other tangible information in whatever form which pertains to the Company, and the Executive will not retain any such information or any reproduction or excerpt thereof.

(d)

Nothing in this Section 7 diminishes or limits any protection granted by law to trade secrets or relieves the Executive of any duty not to disclose, use or misappropriate any information that is a trade secret for as long as such information remains a trade secret.

Notices. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) upon confirmation of receipt when such notice or other communication is sent by facsimile or telex, (c) one day after delivery to an overnight delivery courier, or (d) on the fifth day following the date of deposit in the United States mail if sent first class, postage prepaid, by registered or certified mail. The addresses for such notices shall be as follows:

(a)

For notices and communications to the Company:

Rayovac Corporation

Six Concourse Parkway

Suite 3300

Atlanta, Georgia 30328

Facsimile: (770) 829-6298

Attention: Board of Directors

with a copy to:

Rayovac Corporation

Six Concourse Parkway

Suite 3300

Atlanta, Georgia 30328

Facsimile: (770) 829-6298

Attention: James T. Lucke

(b)

For notices and communications to the Executive:

Kent J. Hussey

15805 Savona Way

Naples, FL 34110

Facsimile: (239) 594-2669

with a copy to:

Sutherland, Asbill & Brennan LLP

999 Peachtree Street, N.E.

Atlanta, GA 30309

Facsimile: (404) 853-8806

Attention: Mark D. Kaufman

Any party hereto may, by notice to the other, change its address for receipt of notices hereunder.

General.

(a)

Governing Law. This Agreement shall be construed under and governed by the laws of the State of Wisconsin, without reference to its conflicts of law principles.

(b)

Amendment; Waiver. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument executed by all of the parties hereto or, in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.

(c)

Successors and Assigns. This Agreement shall be binding upon the Executive, without regard to the duration of his employment by the Company or reasons for the cessation of such employment, and inure to the benefit of his administrators, executors, heirs and assigns, although the obligations of the Executive are personal and may be performed only by him. This Agreement shall also be binding upon and inure to the benefit of the Company and its subsidiaries, successors and assigns, including any corporation with which or into which the Company or its successors may be merged or which may succeed to their assets or business.

(d)

Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.

(e)

Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation during his employment hereunder in any benefit, bonus, incentive or other plan or program provided by the Company or any of its affiliates and for which the Executive may qualify. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan or program of the Company or any affiliated company at or subsequent to the date of the Executive’s termination of employment with the Company shall, subject to the terms hereof or any other agreement entered into by the Company and the Executive on or subsequent to the date hereof, be payable in accordance with such plan or program.

(f)

Mitigation. In no event shall the Executive be obligated to seek other employment by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement. In the event that the Executive shall give a Notice of Termination for Constructive Termination and it shall thereafter be determined that Constructive Termination did not take place, the employment of the Executive shall, unless the Company and the Executive shall otherwise mutually agree, be deemed to have terminated, at the date of giving such purported Notice of Termination, and the Executive shall be entitled to receive only those payments and benefits which he would have been entitled to receive at such date had he terminated his employment voluntarily at such date under Section 4(d) of this Agreement.

(g)

Equitable Relief. The Executive expressly agrees that breach of any provision of Sections 6 or 7 of this Agreement would result in irreparable injuries to the Company, that the remedy at law for any such breach will be inadequate and that upon breach of such provisions, the Company, in addition to all other available remedies, shall be entitled as a matter of right to injunctive relief in any court of competent jurisdiction without the necessity of proving the actual damage to the Company.

(h)

Severability. Sections 6(a), 6(b), 6(c), 7(a), 7(b) and 9(h) of this Agreement shall be considered separate and independent from the other sections of this Agreement and no invalidity of any one of those sections shall affect any other section or provision of this Agreement. However, because it is expressly acknowledged that the pay and benefits provided under this Agreement are provided, at least in part, as consideration for the obligations imposed upon Executive under Sections 6(a), 6(b), 6(c), 7(a) and 7(b), should Executive challenge those obligations or any court determine that any of the provisions under these Sections is unlawful or unenforceable, such that Executive need not honor those provisions, then Executive shall not receive the pay and benefits, provided for in this Agreement following termination, if otherwise available to Executive, irrespective of the reason for the end of Executive’s employment.

(i)

Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, discussions, writings and agreements between them with respect to the subject matter hereof.

[signature page follows]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


RAYOVAC CORPORATION

By:		/s/ David A. Jones
		David A. Jones
		Chief Executive Officer

EXECUTIVE:

/s/ Kent J. Hussey

Kent J. Hussey

EX-10.2 3 dex102.htm AMENDED & RESTATED EMPLOYMENT AGREEMENT BETWEEN THE COMPANY & KENNETH V. BILLER. Amended & Restated Employment Agreement between the Company & Kenneth V. Biller.

Exhibit 10.2

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of the 1st day of April, 2005, by and between Rayovac Corporation, a Wisconsin corporation (the “Company”) and Kenneth V. Biller (the “Executive”).

WHEREAS, the Executive is willing and able to accept such employment on such terms and conditions; and

Employment Duties and Acceptance. The Company hereby employs the Executive, and the Executive agrees to serve and accept employment with the Company as President, Global Operations, reporting directly to the Chairman and Chief Executive Officer of the Company. During the Term (as defined below) and the Executive shall devote all of his working time to such employment and appointment, shall devote his best efforts to advance the interests of the Company.

2.	Term of Employment. Subject to Section 4 hereof, the Executive’s employment and appointment hereunder shall be for a term commencing on the date hereof and expiring on September 30, 2008 (the “Term”).

Compensation. In consideration of the performance by the Executive of his duties hereunder, the Company shall pay or provide to the Executive the following compensation which the Executive agrees to accept in full satisfaction for his services, it being understood that necessary withholding taxes, FICA contributions and the like shall be deducted from such compensation:

(a)

Base Salary. The Executive shall receive a base salary of Four Hundred and Fifty Thousand Dollars ($450,000) per annum effective April 1, 2005 for the duration of the Term (“Base Salary”), which Base Salary shall be paid in equal semi-monthly installments each year, to be paid semi-monthly in arrears. The Board of Directors of the Company (the “Board”) will review from time to time the Base

Salary payable to the Executive hereunder and may, in its discretion, increase the Executive’s Base Salary. Any such increased Base Salary shall be and become the “Base Salary” for purposes of this Agreement.

(b)

Bonus. The Executive shall receive a bonus for each fiscal year ending during the Term, payable annually in arrears, which shall be based on Seventy-Five percent (75%) of Base Salary paid during such fiscal year, provided the Company achieves certain annual performance goals established by the Board from time to time (the “Bonus”). The Board may, in its discretion, increase the annual Bonus. Any such increased annual Bonus shall be and become the “Bonus” for such fiscal year for purposes of this Agreement.

(c)

(d)

Existing Stock-Based Awards. All stock options and restricted stock awards previously granted to the Executive shall remain in full force and effect in accordance with their terms.

(e)

New Restricted Stock Award. The Company shall grant the Executive restricted shares of the Company’s common stock as follows. On April 1, 2005, Executive shall be awarded 25,000 shares of the Company’s common stock, shares that will include restrictions prohibiting the sale, transfer, pledge, assignment or other encumbrance of such stock (“Restricted Shares”), provided, however, that restrictions on 50% of the Restricted Shares shall lapse on October 1, 2006 and the restrictions on the remaining 50% of the Restricted Shares shall lapse on October 1, 2007. Notwithstanding anything else set forth above, (i) restrictions on Restricted Shares shall also lapse on a change in control of the Company (as defined in the company’s stock plan governing such award) (“Change in Control”) and (ii) any unlapsed shares of Restricted Stock shall be forfeited to the Company in the event the Executive’s employment with the Company terminates for any reason prior to a Change in Control. Additional terms and conditions of such restricted stock award shall be set forth in an agreement with such terms and conditions being substantially similar (other than as set forth above) to the terms and conditions of previous restricted stock award grants to similarly situated Company executives.

(f)

with (except as otherwise provided herein or in the applicable plan document) the vesting of Fifty Percent (50%) of each such vesting tranche to be subject to the Executive’s continued employment with the Company as of each applicable December 1^st and the remaining Fifty Percent (50%) of each such vesting tranche to be subject to the achievement of performance goals to be established by the Board from time to time (“Performance-Based Restricted Stock”), provided that One Hundred Percent (100%) of each outstanding vesting tranche shall vest upon a Change in Control. If the required performance goals are not met in any fiscal year, so that the restrictions on Performance-Based Restricted Stock scheduled to lapse for such year do not so lapse, the restrictions on such Performance-Based Restricted Stock will lapse the December 1 first following the originally scheduled lapse date. Notwithstanding anything else set forth above, (i) restrictions on such shares shall also lapse on a Change in Control and (ii) any unlapsed shares of restricted stock shall be forfeited to the Company in the event the Executive’s employment with the Company terminates for any reason prior to a Change in Control; and (iii) restrictions on such shares shall also lapse upon the expiration of the Agreement at the end of the Term. Additional terms and conditions of such restricted stock award shall be set forth in an agreement with such terms and conditions being substantially similar (other than as set forth above) to the terms and conditions of previous restricted stock award grants to similarly situated Company executives.

(g)

Vacation. The Executive shall be entitled to five (5) weeks vacation each year.

(h)

Other Expenses and Use of Company Aircraft. The Executive shall be entitled to reimbursement of all reasonable and documented expenses actually incurred or paid by the Executive in the performance of the Executive’s duties under this Agreement, upon presentation of expense statements, vouchers or other supporting information in accordance with Company policy. All expense reimbursements and other perquisites of the Executive are reviewable periodically by the Compensation Committee of the Board.The Executive shall be eligible to use the Company’s aircraft for personal travel between and among home locations in Wisconsin and Florida when such aircraft is not being used for business purposes, subject to the Company’s policy in effect from time to time with respect to personal use of Company aircraft.

(i)

Vehicle. The Company shall provide the Executive with the use of a leased automobile suitable for a similarly situated officer of a company similar to the Company. Unless the Executive’s employment is terminated by the Company for Cause, the Executive shall be permitted to purchase such automobile for $100 upon the earlier of (i) the expiration of the lease of such automobile or (ii) the termination of Executive’s employment.

(j)

(k)

Legal Fees. The Company shall pay the Executive’s actual and reasonable legal fees incurred in connection with the preparation of this Agreement.

4.	Termination.

(a)

(i)

the commission by the Executive of any deliberate and premeditated act taken by the Executive in bad faith against the interests of the Company;

(ii)

the Executive has been convicted of, or pleads nolo contendere with respect to, any crime (felony or less), the circumstances of which substantially relate to the circumstances, duties or responsibilities of Executive’s position with the Company;

(iii)

(iv)

the willful failure or refusal of the Executive to perform his duties as set forth herein or the willful failure or refusal to follow the direction of the CEO, provided such failure or refusal continues after thirty (30) days of the receipt of notice in writing from the CEO of such failure or refusal, which notice refers to this Section 4(a) and indicates the Company’s intention to terminate the Executive’s employment hereunder if such failure or refusal is not remedied within such thirty (30) day period; or

(v)

the Executive breaches any of the terms of this Agreement or any other agreement between the Executive and the Company which breach is not cured within thirty (30) days subsequent to notice from the Company to the Executive of such breach, which notice refers to this Section 4(a) and

indicates the Company’s intention to terminate the Executive’s employment hereunder if such breach is not cured within such thirty (30) day period.

(b)

(c)

(d)

(e)

(i)

a reduction in Base Salary (other than as permitted hereby);

(ii)

a reduction in annual Bonus opportunity;

(iii)

a change in location of office of more than seventy-five (75) miles from Madison, Wisconsin;

(iv)

(v)

any material reduction in any of the benefits described in Section 3(c), (g), (h), (i) or (j) hereof.

For purposes of any stock option agreements or any restricted stock award agreements, Constructive Termination shall be treated as a termination of employment by the Company without “Cause.”

(f)

5.	Effect of Termination of Employment.

(a)

(b)

Without Cause, Death or Disability. If the Executive’s employment is terminated by the Company (a) without Cause or (b) by reason of death or disability, and the Executive executes a separation agreement with a release of claims agreeable to the Company (to the extent that the Executive is physically and mentally capable to execute such an agreement), then the Company shall pay the Executive the amounts and provide the Executive the benefits as follows:

(i)

foregoing, if payment in accordance with the preceding sentence would subject the Executive to tax under section 409A of the Internal Revenue Code of 1986, as amended, then payment will be suspended until the first date as of which payment can be made without subjecting the Executive to such tax.

(ii)

(iii)

The Executive’s accrued vacation (determined in accordance with Company policy) at the time of termination shall be paid as soon as reasonably practicable.

(iv)

Any payments provided for hereunder shall be paid net of any applicable withholding required under federal, state, or local law and any additional withholding to which the Executive has agreed.

(v)

(c)

compensation provided in Section 5(b) except that instead of the payment provided for in Section 5(b)(i)(B) hereof, the Executive shall be entitled to the annual Bonus (if any) earned pursuant to any annual bonus or incentive plan maintained by the Company in respect of the fiscal year in which such termination occurs, and he shall be entitled to the full amount of such Bonus even if he terminates his employment before the end of such fiscal year. Notwithstanding the foregoing, the Company may require that the Executive continue to remain in the employ of the Company for up to a maximum of twelve (12) months following the Change in Control (the “Post-Term Period”). The Company shall place the maximum cash payments payable pursuant to Section 5(b) (as modified by the provisions of this Section 5(c) above with respect to Section 5(b)(i)(B) hereof) in escrow with a commercial bank or trust company mutually acceptable to the Company and the Executive as soon as practicable following the Change in Control. For the Post-Term Period, the Company shall make the cash payments that would otherwise be required pursuant to Section 3. At the expiration of the Post-Term Period, the Executive shall receive all cash amounts due the Executive from the amount held in escrow ratably monthly over the 24-month period immediately following such termination (all such cash payments to be deducted from the amount placed in escrow) with the balance (if any) returned to the Company. If the Company does not require that the Executive remain in the employ of the Company, the Company shall pay the Executive all cash amounts payable pursuant to Section 5(b) (as modified by the provisions of this Section 5(c) above with respect to Section 5(b)(i)(B) hereof) ratably monthly over the 24-month period immediately following such termination (all such cash payments to be deducted from the amount placed in escrow) with the balance (if any) returned to the Company. Notwithstanding the foregoing, if payment in accordance with the preceding sentence would subject the Executive to tax under section 409A of the Internal Revenue Code of 1986, as amended, then payment will be suspended until the first date as of which payment can be made without subjecting the Executive to such tax.

(d)

At End of Term. Upon the expiration of the Agreement at the end of the Term, all restrictions shall lapse on any of Executive’s restricted stock awards, other than any restricted stock awards granted pursuant to the Super Bonus Program.

6.	Agreement Not to Compete.

(a)

The Executive agrees that during the Non-Competition Period (as defined below), he will not, directly or indirectly, in any capacity,

either separately, jointly or in association with others, as an officer, director, consultant, agent, employee, owner, principal, partner or stockholder of any business, or in any other capacity, provide services of the same or similar kind or nature that he provides to the Company to, or have a financial interest in (excepting only the ownership of not more than 5% of the outstanding securities of any class listed on an exchange or the Nasdaq Stock Market), any competitor of the Company (which means any person or organization that is in the business of or makes money from designing, developing, or selling products or services similar to those products and services developed, designed or sold by the Company) The “Non-Competition Period” is (a) the longer of the Executive’s employment hereunder plus (b) a period of one (1) year thereafter. In recognition, acknowledgement and agreement that the Company’s business and operations extend throughout North America and beyond, the parties agree that the geographic scope of this covenant not to compete shall extend to North America.

(b)

(c)

(d)

(e)

For purposes of this Section 6 and Section 7, the “Company” refers to the Company and any incorporated or unincorporated affiliates of the Company.

7.	Secret Processes and Confidential Information.

(a)

the Company and any confidential information or materials of other parties received by the Executive in connection with the performance of his duties hereunder. For purposes of this Section 7(a), confidential information or materials shall include existing and potential customer information, existing and potential supplier information, product information, design and construction information, pricing and profitability information, financial information, sales and marketing strategies and techniques and business ideas or practices. The restriction on the Executive’s use or disclosure of the confidential information or materials shall remain in force during the Executive’s employment hereunder and until the earlier of (x) a period of two (2) years thereafter or (y) such information is of general knowledge in the industry through no fault of the Executive or any agent of the Executive. The Executive also agrees to return to the Company promptly upon its request any Company information or materials in the Executive’s possession or under the Executive’s control. This Section 7(a) is not intended to preclude Executive from being gainfully employed by another. Rather, it is intended to prohibit Executive from using the Company’s confidential information or materials in any subsequent employment or employment undertaken that is not for the benefit of the Company during the identified period.

(b)

The Executive will promptly disclose to the Company and to no other person, firm or entity all inventions, discoveries, improvements, trade secrets, formulas, techniques, processes, know-how and similar matters, whether or not patentable and whether or not reduced to practice, which are conceived or learned by the Executive during the period of the Executive’s employment with the Company, either alone or with others, which relate to or result from the actual or anticipated business or research of the Company or which result, to any extent, from the Executive’s use of the Company’s premises or property (collectively called the “Inventions”). The Executive acknowledges and agrees that all the Inventions shall be the sole property of the Company, and the Executive hereby assigns to the Company all of the Executive’s rights and interests in and to all of the Inventions, it being acknowledged and agreed by the Executive that all the Inventions are works made for hire. The Company shall be the sole owner of all domestic and foreign rights and interests in the Inventions. The Executive agrees to assist the Company at the Company’s expense to obtain and from time to time enforce patents and copyrights on the Inventions.

(c)

(d)

(a)

For notices and communications to the Company:

Rayovac Corporation

Six Concourse Parkway

Suite 3300

Atlanta, GA 30328

Facsimile: (770) 829-6298

Attention: James T. Lucke

(b)

For notices and communications to the Executive:

See the address set forth on the signature page hereto

Any party hereto may, by notice to the other, change its address for receipt of notices hereunder.

General.

(a)

Governing Law. This Agreement shall be construed under and governed by the laws of the State of Wisconsin, without reference to its conflicts of law principles.

(b)

(c)

subsidiaries, successors and assigns, including any corporation with which or into which the Company or its successors may be merged or which may succeed to their assets or business.

(d)

Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.

(e)

(f)

(g)

(h)

Sections 6(a), 6(b), 6(c), 7(a) and 7(b), should Executive challenge those obligations or any court determine that any of the provisions under these Sections is unlawful or unenforceable, such that Executive need not honor those provisions, then Executive shall not receive the pay and benefits, provided for in this Agreement following termination, if otherwise available to Executive, irrespective of the reason for the end of Executive’s employment.

(j)

Entire Agreement. This Agreement and the schedule hereto constitute the entire understanding of the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, discussions, writings and agreements between them with respect to the subject matter hereof.

[signature page follows]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.


RAYOVAC CORPORATION

By:		/s/ David A. Jones
		David A. Jones
		Chief Executive Officer


EXECUTIVE:

/s/ Kenneth V. Biller
Name: Kenneth V. Biller

Notice Address:

7801 Noll Valley Road
Verona, WI 53593

EX-10.3 4 dex103.htm AMENDED AND RESTATED REGISTERED DIRECTOR'S AGREEMENT Amended and Restated Registered Director's Agreement

Exhibit 10.3

Amended and Restated

Registered Director’s Agreement

between

Rayovac Europe GmbH,

Innovapark A 4, AM Limespark 2, Sulzbach, Germany

represented by its shareholder(s), ROV Holding, Inc.

- hereinafter referred to as the “Company” -

and

Mr. Remy Burel,

Wiesbadener Str. 82, Koenigstein im Taunus, Germany 61462

- hereinafter referred to as the “Registered Director” –

§ 1	Appointment and Power of Representation

1.1	The Registered Director was appointed registered director of the Company by resolution of the shareholder(s) meeting on 06 November 2002. Continuous service with the Company is recognised as of 21 May 1990. This Agreement contains the conditions of the employment relationship.

1.2	The Registered Director shall represent the Company in court and out of court jointly with another registered director or a Prokurist of the Company. He shall be freed from the restrictions under Section 181 German Civil Code (BGB).

1.3	The Company reserves the right to appoint other registered directors and establish different rules of representation at any time.

§ 2	Duties and Responsibilities

2.1

The Registered Director shall be responsible for the entire scope of business of the Company. He shall, in addition, take the position as President, Europe & Rest of World of Rayovac Corporation (“Rayovac”), a Wisconsin corporation and a company of which the Company is an indirect wholly-owned subsidiary, and be responsible for those functions and duties assigned to him from time to time by the shareholder(s) of the Company and the Chairman and Chief Executive Officer of Rayovac. The shareholder(s) may decide on a different allocation of functions and duties at any time; provided, however, that the Registered Director is given at least three (3) months prior written notice thereof, to the extent practicable. The place of performance is currently Sulzbach, Germany. In addition, upon the Company’s request the Registered Director shall relocate to any other office in Germany upon no less than three (3) months prior written notice; provided, however, that the Company has determined in good faith that such relocation is reasonably necessary for the Registered Director to adequately perform his duties hereunder. The Registered Director is obligated to secure a residence near the place of performance.

The Registered Director shall conduct the business of the Company with the due care and diligence of a prudent businessman and in accordance with the provisions of all applicable laws and regulations, in particular the Law on Limited Liability Companies (GmbH-Gesetz), the Articles of Association of the Company (Satzung) and the internal rules of the board of directors (Geschäftsordnung), if any, as amended from time to time, as well as the directions given by the shareholder(s). The Registered Director shall at all times comply with the instructions of the shareholder(s).

- 2 -

2.2	The Registered Director shall assume the rights and obligations the Company has as employer with respect to labour and social security law.

2.3	Within 3 months following the end of each business year, the Registered Director shall draw up the balance sheet and the profit and loss statement for the completed business year and shall provide these to each shareholder(s) together with a business report to be prepared by him.

§ 3	Transactions Requiring Prior Consent of Shareholder(s)

3.1	The Registered Director is entitled to carry out all measures falling within the normal scope of business of the Company.

3.2

The prior consent of the shareholder(s) shall be obtained before any legal transactions are engaged which go beyond the normal scope of business of the Company. To the extent that the consent of the shareholder(s) is required under this Agreement, but not required under applicable law, the shareholder(s) appoint the President and Chief Operating Officer of Rayovac (or any other officer of Rayovac as determined by the shareholder(s) from time to time) as their duly authorized representative (the “Representative”), who shall be authorized and directed to act on their behalf in such instances.

This shall apply in particular to the acts and transactions as listed in the articles of association as applicable respectively amended by the shareholder(s) from time to time.

§ 4	Working Hours

4.1	The Registered Director shall place his entire working capacity as well as all his knowledge and abilities at the disposal of the Company.

4.2

At the request of the shareholder(s), the Registered Director will accept other mandates where it serves the interests of the Company. Upon the termination of this Agreement or his removal as a registered director, he will resign from or terminate all such offices undertaken and assumed at the request or in the interest of the Company. The Registered Director hereby grants power of attorney to the shareholder(s) of the Company to give notice of termination on his behalf if he does not comply with the aforementioned obligation to resign or terminate, this power of attorney not terminating by virtue of any termination of this Agreement only.

- 3 -

§ 5	Remuneration

5.1

For his services, the Registered Director shall receive a fixed annual gross salary of 375,000.00 EUR (in words: Three Hundred Seventy-Five Thousand Euro) (“Fixed Salary”) effective 1 April 2005, which shall be paid in twelve equal monthly instalments at the end of each month in arrears to a bank account indicated to the Company by the Registered Director. The shareholder(s) of the Company will review from time to time the Fixed Salary payable to the Registered Director hereunder and may, in their discretion, increase the Registered Director’s Fixed Salary.

5.2

The Registered Director shall receive a bonus for each fiscal year, payable annually in arrears, which shall be of up to sixty percent (60 %) of the Fixed Salary, provided Rayovac achieves certain annual performance goals or any other goals established by the Board of Directors (the “Board”) of Rayovac in its discretion from time to time (the “Bonus”). The Bonus shall be paid (if payable) on or before December 31 of each year. The annual performance goals approved by the Board shall be set forth in writing and a copy shall be delivered to the Registered Director promptly after approval thereof by the Board. Such annual performance goals shall be subject to modification from time to time as approved by the Board.

5.3

Rayovac shall grant the Registered Director restricted shares of Rayovac’s common stock as follows. On April 1, 2005, Registered Director shall be awarded 25,000 (Twenty-Five Thousand) shares of Rayovac’s common stock, shares that will include restrictions prohibiting the sale, transfer, pledge, assignment or other encumbrance of such stock (“Restricted Shares”), provided, however, that all such restrictions shall lapse on October 1, 2008. Notwithstanding anything else set forth above, (i) restrictions on Restricted Shares shall also lapse on a change in control of the Company (as defined in the company’s stock plan governing such award) (“Change in Control”) and (ii) any unlapsed shares of Restricted Stock shall be forfeited to the Company in the event the Executive’s employment with the Company terminates for any reason prior to a Change in Control. Additional terms and conditions of such restricted stock award shall be set forth in an agreement with such terms and conditions being substantially similar (other than as set forth above) to the terms and conditions of previous restricted stock award grants to similarly situated Company executives.

5.4	Subject to approval by the Compensation Committee of the Board and the Board, on each October 1 during the term of this Agreement commencing October 1, 2005, the Registered Director shall be awarded that number of shares (rounded up to the nearest whole share) of

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Rayovac’s common stock with a Fair Market Value equal to One Hundred Percent (100%) of the Fixed Salary then in effect. Each such award will provide for vesting in three (3) equal tranches on each December 1^st thereafter, beginning the year following the grant date, with (except as otherwise provided herein or in the applicable plan document) the vesting of Fifty Percent (50%) of each such vesting tranche to be subject to the Executive’s continued employment with the Company as of each applicable December 1^st and the remaining Fifty Percent (50%) of each such vesting tranche to be subject to the achievement of performance goals to be established by the Board from time to time (“Performance-Based Restricted Stock”), provided that One Hundred Percent (100%) of each outstanding vesting tranche shall vest upon a Change in Control. If the required performance goals are not met in any fiscal year, so that the restrictions on Performance-Based Restricted Stock scheduled to lapse for such year do not so lapse, the restrictions on such Performance-Based Restricted Stock will lapse the December 1 first following the originally scheduled lapse date. Notwithstanding anything else set forth above, (i) restrictions on such shares shall also lapse on a Change in Control and (ii) any unlapsed shares of restricted stock shall be forfeited to the Company in the event the Executive’s employment with the Company terminates for any reason prior to a Change in Control. Additional terms and conditions of such restricted stock award shall be set forth in an agreement with such terms and conditions being substantially similar (other than as set forth above) to the terms and conditions of previous restricted stock award grants to similarly situated Company executives.

5.5

The Company will pay to the Registered Director the employer’s social security contributions as required under applicable laws, in particular the contributions to the pension insurance, the unemployment insurance, the health insurance and the nursing care insurance. If the Registered Director is insured in a private health insurance, the Company will, upon submission of adequate proof, pay 50 % of the contributions to such health insurance but not more than the amount which would have to be paid if the Registered Director was covered by the AOK statutory health insurance.

5.6	With the above remuneration, any and all services of the Registered Director for the Company or on behalf of the Company or any affiliated company are compensated. There shall be no additional pay for overtime and extra work.

5.7	All work results produced or achieved by the Registered Director belong, and where applicable, all rights therein are transferred, to the Company, without the Registered Director being entitled to any additional remuneration therefore.

5.8	The assignment and pledging of claims for remuneration is subject to the prior approval of the shareholder(s) of the Company.

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§ 6	Other Benefits

6.1	During the term of this Agreement, the Company shall provide the Registered Director with a company car in the “A” leasing group or car category for business and private use.

Terms and conditions are subject to the Company’s car rules as amended from time to time.

The Registered Director herewith explicitly waives all claims and holds the Company harmless from any claims, to which he, his family or third parties could be entitled to in connection with the private use of the car insofar as these are not covered by the Company’s insurance coverage.

6.2	The Pension Agreement concluded between VARTA Gerätebatterie GmbH, and as assigned to the Company, and the Registered Director dated 22 May 1991 including the supplement of 1 July 1999 remains in force.

6.3

The accident insurance coverage will be upheld. In the event a new group accident insurance policy is entered into by the Company, the Registered Director will be entitled to participate under the then applicable new conditions; provided, however, that such conditions shall be reasonably equivalent to or more favorable than the previous conditions.

Any income taxes accruing on this benefit are to be borne by the Registered Director.

6.4

The Registered Director shall be entitled to indemnification from the Company to the maximum extent provided by law, but not for any action, suit, arbitration or other proceeding (or portion thereof) initiated by the Registered Director, unless authorized or ratified by the shareholder(s) and the Board. Such indemnification shall be covered by the terms of the Company’s or Rayovac’s policy of insurance for directors and officers in effect form time to time (the “D&O Insurance”). Copies of the D&O Insurance policy will be made available to the Registered Director upon request.

6.5	The Company shall pay the Registered Director’s actual and reasonable legal fees incurred in connection with the preparation of this Agreement.

6.6	All expense reimbursements and perquisites of the Registered Director are reviewable periodically by the shareholder(s) and the Board or a committee thereof.

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§ 7	Charges and Expenditures

Travel costs and other appropriate expenditures, provided these are incurred in the interest of the Company, will be pursuant to the general provisions of the Company and the guidelines for management members of the Company, if any and as amended from time to time. The Registered Director accounts for his expenditures according to Group V (Vertrauensspesen).

§ 8	Inability to Work

8.1	In the case of an inability to work, the Registered Director will immediately inform the Company about this impairment and the expected duration thereof as well as the reasons for such impairment. At the request of the Company he shall provide a medical certificate.

8.2

Upon the Registered Director’s inability to perform his duties hereunder by reason of any mental, physical or other disability for a period of at least six (6) consecutive months (for purposes hereof, “Disability” has the same meaning as in the Company’s or Rayovac’s disability policy, if applicable) (a “Disability”), all benefits paid to the Registered Director by a statutory or private health insurance as compensation for the loss of salary shall be deducted from any amounts paid to the Registered Director under clause 14.7 hereof. Where the Registered Director is not entitled to such benefits because he did not take out the appropriate private health insurance, the equivalent of the sick pay payable under statutory health insurance will be taken into account.

§ 9	Holiday Entitlement

9.1

The Registered Director shall be entitled to 30 working days holiday per year, it being understood that, for the sole purpose of holidays, the working week will be deemed to run from Monday to Friday. The timing of any holiday must be agreed to by the Representative and shall take into account the business interests of the Company.

9.2

The holiday leave has to be granted and taken during the running calendar year. If the Registered Director is not able to take his holiday due to business needs he can transfer his remaining holiday to the following calendar year. In case of such transfer the Registered Director is required to take the holiday within the first six (6) months of the following calendar year, otherwise the holiday claim expires.

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§ 10	Duty of Confidentiality

10.1

The Registered Director shall maintain strict confidentiality vis-à-vis third parties as well as unauthorized staff members of the Company with respect to all confidential or business matters concerning the Company or any affiliated company and coming to his attention within the scope of his activities for the Company, irrespective of how he obtained such knowledge, except for such disclosures which follow from his duties as a registered director of the Company and are essential for the due performance of his functions. This obligation shall continue to apply following termination of this Agreement.

The term “confidential or business matters of the Company” includes all business, operational, organizational and technical knowledge and information (e.g., existing and potential customer information, existing and potential supplier information, product information, design and construction information, pricing and profitability information, financial information, sales and marketing strategies and techniques and business ideas or practices) which shall not become known to the public in accordance with the wishes or the best interest of the Company or any affiliated company (including Rayovac) or in consideration of the nature of the information.

10.2

Business records of any kind, including private notes concerning the Company’s or any affiliated company’s affairs and activities, may be used for business purposes only. Business and operating records of any kind or in any form which are in the possession of the Registered Director as well as any copies thereof shall be carefully kept.

§ 11	Non-Compete-Obligation

11.1

The Registered Director undertakes for the duration of the Agreement and for a period of 1 year after its termination (the “Non-Compete Period”) not to become active for any domestic or foreign enterprise and/or person operating in the field of the design, manufacturing, marketing or sale of products or services similar to those products and services designed, manufactured, marketed or sold by the Company or its affiliates (including Rayovac) in the above named business.

11.2

The Registered Director in particular undertakes for the duration of the Non-Compete Period not to become active as an employee, self-employed person or consultant and not to hold any interest or acquire any participation in a company which is directly or indirectly a competitor of the Company or its affiliates (including Rayovac) and also not to conduct businesses on his own or anyone else’s behalf in such fields or finance or acquire any such company except if

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such participation concerns shares or securities quoted on or dealt in on any recognized stock exchange, held or purchased for capital investment purposes only, provided that such an investment shall not exceed 5 % of the equity share capital of the relevant company and that the Registered Director has not concluded any agreement granting him any additional rights or he is otherwise enabled to substantially influence matters of such company, whether directly or indirectly.

Competition for the purposes hereof is determined by the business of the Company or any affiliated company (including Rayovac) at any time in the case of a termination of the employment relationship by the business at the time of the termination and in the two years prior to it, in so far as the Registered Director had access to or was responsible for the interests of the Company in such business.

11.3

As compensation for the restrictions imposed by the post-contractual non-compete-obligation, the Company will pay to the Registered Director compensation in the amount of 50 % of the remuneration as last received by him for the duration of the post-contractual non-compete-obligation, payable in monthly instalments in arrears; provided, however, that if the Registered Director’s employment by the Company is terminated by the Company without Cause or by reason of Disability, the resulting payments by the Company to the Registered Director required under clause 14.7 shall be in lieu of any payment obligations on the part of the Company under this clause 11.3. Section 74 c of the German Commercial Code (Handelsgesetzbuch, HGB) applies.

During the restriction period, the Registered Director is obliged to submit to the Company at the end of each calendar quarter a statement and proof regarding the amount of his income (after deduction of deductible expenses) as a self-employed person or of his income as an employee. As long as the Registered Director does not fulfil this obligation, the claim for compensation does not accrue.

11.4	The Company may at any time waive its rights under clause 11.1 observing a three (3) months’ notice period. In such case, the Company is freed from its obligation to pay compensation pursuant to clause 11.2 with the end of the notice period after the waiver.

11.5	Unless otherwise provided herein, for the duration of the Non-Compete Period Section 61 of the German Commercial Code shall be mutually applicable.

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§ 12	Non-Solicitation Covenant

12.1

The Registered Director shall after the end of the Agreement be forbidden to entice away the customers of the Company or any of its affiliates (including Rayovac). Customers of the Company or any of its affiliates (including Rayovac) are persons or entities the Company or any of its affiliates (including Rayovac) has dealt with or serviced or attempted to conclude business with within the past two (2) years preceding the termination of the Registered Director’s employment hereunder. The pool of prohibited customers is limited to those with whom the Registered Director dealt personally.

12.2

The Registered Director also undertakes for the duration of the Non-Compete Period not to employ any employees of the Company or any of its affiliates (including Rayovac) and not to entice away any employees, either for himself or for third parties, and not to take part in any attempts of third parties to entice them away.

§ 13	Contractual Penalty

The Registered Director acknowledges that the Company or any of its affiliates (including Rayovac) may suffer irreparable loss or damage as a result of any breach of the obligations under this Agreement, in particular, § 10, § 11 and § 12. In the case of any breach, the Registered Director shall pay a contractual penalty (Vertragsstrafe) of one (1) month of gross Fixed Salary monthly payments (on demand and without any court order) in respect of each breach of this obligation. The plea for continuation of offence (Fortsetzungszusammenhang) shall be excluded. In the case of a continuing breach which is not remedied, there shall be deemed to be a separate breach each calendar month in respect of which a separate penalty shall be payable. The contractual penalty does not prejudice the Company’s right to claim any further damages in respect of losses suffered or to exercise any other right or remedy available to it. If a court determines that any of the restrictions contained in clauses 10, 11 or 12 are too broad or otherwise unreasonable under applicable law, including with respect to time or space, the court is hereby requested and authorized by the parties hereto to revise such restrictions to include the maximum restrictions allowed under applicable law.

§ 14	Duration and Termination of the Agreement

14.1	This Agreement shall enter into effect on April 1, 2005 and shall continue until notice of termination thereof is delivered in accordance with this article 14 (the “Term”).

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14.2	During the Term either party may terminate the employment relationship by giving six (6) months notice to the end of a month.

14.3

The Company shall have the right at any time to terminate the Registered Director’s employment hereunder upon three (3) months prior written notice to the end of a month upon the Registered Director’s inability to perform his duties hereunder by reason of any Disability. The Registered Director’s employment will be deemed automatically terminated upon his death.

14.4

Notice of termination shall be given in writing. If this Agreement is terminated by the Registered Director, notice thereof shall be given to any other registered director or, in the event that no other registered director has been appointed, to the shareholder(s) with the largest holding in the Company.

14.5

The right to terminate this Agreement for Cause shall remain unaffected. The Company shall have the right at any time to terminate the Registered Director’s employment hereunder without prior notice upon the occurrence of any of the following (any such termination being referred to as a termination for “Cause”):

(i)

the commission by the Registered Director of any deliberate and premeditated act taken by the Registered Director in bad faith against the interests of the Company or any of its affiliates;

(ii)

the Registered Director has been convicted of, or pleads nolo contendere with respect to, any crime (felony or less) the circumstances of which substantially relate to the circumstances, duties or responsibilities of Registered Director’s position;

(iii)

the current use of illegal drugs, misuse of legal drugs, or intoxication of the Registered Director in the workplace or while performing his duties or responsibilities associated with his position, the Registered Director’s failure of a Company-required drug test, or the violation of any Company drug policy;

(iv)

the wilful failure or refusal of the Registered Director to perform his duties as set forth herein or the wilful failure or refusal to follow the direction of the shareholder(s) of the Company or the Chairman and Chief Executive Officer of Rayovac, provided such failure or refusal continues after thirty (30) days of the receipt of notice in writing from shareholder(s) of the Company of such failure or refusal, which notice indicates the Company’s intention to terminate the Registered Director’s employment hereunder if such failure or refusal is not remedied within such thirty (30) day period; or

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(v)

the Registered Director breaches any of the material terms of this Agreement or any other agreement between the Registered Director and the Company which breach is not cured within thirty (30) days subsequent to notice from the Company to the Registered Director of such breach, which notice indicates the Company’s intention to terminate the Registered Director’s employment hereunder if such breach is not cured within such thirty (30) day period.

14.6

If either party gives notice to terminate this Agreement, the Company shall be entitled to release the Registered Director from his duties during the period of notice, whereby any leave to which the Registered Director may be entitled shall be deemed included in the period during which he is released of such duties. During the period of release the Company will continue to pay the Registered Director the Fixed Salary and the social security contributions according to clause 5.5. In addition, the Registered Director shall be entitled to use the Company car for private purposes during such period of release. If the Registered Director returns the Company car prior to the end of such period, then he is entitled to claim financial compensation for the loss of the cash benefit of the private use of the Company car until the end of such period.

14.7

If the Registered Director’s employment is terminated by the Company without Cause or by reason of death or Disability (but not upon termination by the Company with Cause as permitted under clause 14.5 or termination by the Registered Director for any reason), and the Registered Director executes a separation agreement with a release of claims agreeable to the Company (to the extent that the Registered Director is physically and mentally capable to execute such an agreement), then the Company shall pay the Registered Director the amounts and provide the Registered Director, or his heirs, beneficiaries or personal representatives, as applicable, the benefits as follows:

(i)

The Company shall pay to the Registered Director as severance, a gross amount in cash equal to triple the sum of (i) the Registered Director’s Fixed Salary, and (ii) the annual Bonus (if any) earned by the Registered Director pursuant to any annual bonus or incentive plan maintained by the Company in respect of the fiscal year ending immediately prior to the fiscal year in which the termination occurs, such cash amount to be paid to the Registered Director in equal monthly instalments over the 36-month period immediately following such termination.

(ii)

For the 24-month period immediately following such termination, the Company shall arrange to provide the Registered Director and his dependents the additional benefits contained in clause 5.5 substantially similar to those provided to the Registered Director and his dependents by the Company immediately prior to the date of termination, at no greater cost to the Registered Director or the Company than the

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cost to the Registered Director and the Company immediately prior to such date. Benefits otherwise receivable by the Registered Director pursuant to this clause 14.7(ii) shall cease immediately upon the discovery by the Company of the Registered Director’s breach of any of the covenants contained in clauses 10 or 11. In addition, benefits otherwise receivable by the Executive pursuant to this Section 14.7(ii) shall be reduced to the extent benefits of the same type are received by or made available to the Registered Director during the 24-month period following the Registered Director’s termination of employment (and any such benefits received by or made available to the Registered Director shall be reported to the Company by the Registered Director); provided, however, that the Company shall reimburse the Registered Director for the excess, if any, of the cost of such benefits to the Executive over such cost immediately prior to the date of termination.

(iii)

The Registered Director’s accrued vacation at the time of termination shall be paid as soon as reasonably practicable.

(iv)

The provisions contained in this clause 14.7 shall be in lieu or any payment obligation accruing to the Company under clause 11 hereof, it being understood that the severance payments contained in this clause 14.7 are also as compensation for the restrictions imposed by the post-contractual non-competition obligation.

§ 15	Return of Company Property

Business and operating records of any kind or in any form which are in the possession of the Registered Director as well as any copies thereof shall be returned to the Company at any time upon request of the Company or the shareholder(s), at the latest upon termination of employment or in the event of release from his duties at the date of such release. This obligation to return Company property extends to any other item in the direct or indirect possession of the Registered Director, including the company car with all accessories, subject to the provisions set forth in clause 14.6.

The assertion of any counter rights or a right of retention by the Registered Director is excluded. At the request of the Company, the Registered Director shall declare in a written statement that all such items have been returned to the Company.

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§ 16	Final Provisions

16.1

This Agreement contains the complete agreement of the parties on all terms and conditions of the employment relationship. It replaces all previous agreements or contractual entitlements, in particular the service agreement with the Registered Director and the Company’s predecessor, ROV German Holding GmbH, dated 1 October 2002. No collateral agreements exist.

16.2	In order to be legally valid, any amendments or additions to this Agreement, inclusive of this provision, must be made in writing and require approval of the shareholder(s).

16.3	All notices and other communication given under this Agreement must be in writing. This written form is also observed by the sending of a telegram, telex or telecopy if the author of the document is indicated.

16.4

Should any provision of this Agreement be or become legally invalid, this shall not affect the validity of the remaining provisions. In such an event, the parties shall be obliged to replace the invalid provision with a legally permissible provision which is compatible with the other provisions hereof and which comes as close as possible to the economic intentions of the parties.

16.5	The parties confirm herewith having received a complete copy of this Agreement including enclosures.

16.6	This Agreement and all legal disputes arising hereunder or in connection therewith are subject to the laws of the Federal Republic of Germany.

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16.7

In the event that any action is brought to enforce any of the provisions of this Agreement or to obtain money damages for the breach thereof, and such action results in the award of a judgment for money damages or in the granting of any injunction in favor of one of the parties to this Agreement, all expenses, including reasonable attorneys’ fees, shall be paid by the non-prevailing party.


Dated: April 1, 2005		Dated: April 1, 2005

/s/ David A. Jones		/s/ Remy Burel
Company		Mr. Remy Burel

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EX-10.4 5 dex104.htm FORM OF RESTRICTED STOCK AWARD AGREEMENT UNDER THE 2004 RAYOVAC INCENTIVE PLAN. Form of Restricted Stock Award Agreement under the 2004 Rayovac Incentive Plan.

Exhibit 10.4

FORM OF AWARD AGREEMENT

RAYOVAC CORPORATION

RESTRICTED STOCK AWARD AGREEMENT

FOR EMPLOYEES

This agreement is made and entered into, effective as of (the “Effective Date”), by and between Rayovac Corporation, a Wisconsin corporation (the “Company”), and (the “Employee”) pursuant to The 2004 Rayovac Incentive Plan (the “Plan”) and the terms and conditions of this Rayovac Corporation Restricted Stock Award Agreement (the “Agreement”) as set forth below.

1. Grant of Award. Pursuant to the Plan and subject to the terms and conditions of this Agreement and the Plan, the Company hereby grants to the Employee an award (the “Award”) of shares of the Company’s common stock, par value $.01 per share (“Common Stock”), subject to certain restrictions (individually, a “Share” and collectively, the “Shares”). The Employee acknowledges that he/she has received from the Company a copy of the Plan and any prospectus relating thereto.

2. Restrictions. Until the restrictions set forth in this Agreement or in the Plan lapse, the Shares shall be subject to the following restrictions:

(a) Continued Employment. Except as otherwise specifically provided herein, the Employee’s rights under this Agreement are conditioned on the Employee remaining in the employment of the Company or its subsidiaries or affiliates.

(b) Transfer. The Shares may not be sold, assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered in any manner by the Employee.

(c) No Section 83(b) Election. With respect to the Shares awarded pursuant to this Agreement, the Employee agrees not to make the election provided for under section 83(b) of the Internal Revenue Code of 1986, as amended.

3. Lapse of Restrictions.

(a) General. Subject to the terms of this Agreement, restrictions as to all of the shares shall lapse on .

(b) Forfeiture of Shares. Notwithstanding anything contained herein to the contrary, upon the Employee’s termination of employment with the Company and all of its subsidiaries and affiliates for any reason, the Employee shall forfeit all Shares subject to restrictions that have not lapsed as of such termination, and the Employee shall have no further rights with respect to those Shares. Shares that are no longer subject to restrictions at the time of the Employee’s termination shall not be forfeited.

(c) Termination of Restrictions. Notwithstanding the foregoing, the Compensation Committee of the Board shall have the power, in its sole discretion, to accelerate the expiration of the applicable restriction period, to waive any restriction with respect to any part or all of the Shares or to waive the forfeiture of Shares and retain restrictions on Shares that would have been forfeited pursuant to the terms of this Agreement.

4. Certificates. While the Shares awarded to the Employee are subject to the restrictions set forth in the Plan and in this Agreement, the Employee’s rights to those Shares will be reflected as a book entry in the records of the Company. After and to the extent that such restrictions lapse pursuant to the terms of the Plan and this Agreement, certificates representing the Shares owned by the Employee, after taking into account any Shares withheld to cover the taxes with respect to the lapsing of the restrictions on those Shares, will be delivered to the Employee as soon as practicable after the Employee requests that the Company or its agent deliver the certificates or, if earlier, when the certificates are delivered to the Employee as determined by the Company or its agent.

5. Change in Control. As more particularly provided in the Plan, all restrictions with respect to any of the Shares that have not been previously forfeited as provided in this Agreement shall expire and lapse upon the occurrence of a Change in Control (as defined in the Plan). If a Change in Control has occurred, all restrictions on the Shares shall expire immediately before the effective date of the Change in Control.

6. Incorporation of Plan; Defined Terms. The Plan is incorporated herein by reference and made a part of this Agreement as if each provision of the Plan were specifically set forth herein. In the event of a conflict between the Plan and this Agreement, the terms and conditions of the Plan shall govern. Unless otherwise expressly defined in this Agreement, all capitalized terms in this Agreement shall have the meanings given such terms in the Plan.

7. Miscellaneous.

(a) Successors; Governing Law. This Agreement shall bind and inure to the benefit of the parties, their heirs, personal representatives, successors in interest and assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin.

payments of dividends that become payable to the Employee with respect to any of the Shares that remain subject to restrictions hereunder may, in the Company’s discretion, be net of an amount sufficient to satisfy any federal, state and local withholding tax requirements with respect to such dividends.

(c) Continued Employment. The Agreement does not constitute a contract of employment. Participation in the Plan does not give the Employee the right to remain in the employ of the Company or its subsidiaries or affiliates and does not limit in any way the right of the Company or a subsidiary or affiliate to change the duties or responsibilities of the Employee.

(d) Amendment. The Company may amend this Agreement or modify the provisions for the termination of the restrictions on the Shares without the approval of the Employee to comply with any rules or regulations under applicable tax, securities or other laws or the rules and regulations thereunder or any applicable exchange listing standards, or to correct any omission in this Agreement.

(e) Payment of Taxes Due. No later than the date as of which an amount first becomes includible in the gross income of the Employee for income tax purposes with respect to the Award, Employee shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any Federal, state, local or foreign taxes of any kind required by law or applicable regulation to be withheld (collectively, “Taxes”) with respect to such amount. Withholding obligations arising from the Award may be settled with Common Stock, including the Shares that give rise to the withholding requirement. The obligations of the Company to deliver the Shares shall be conditional on such payment or arrangements. The Company, its subsidiaries and its affiliates shall, to the extent permitted by law, have the right to, at the Company’s election and in the Company’s sole discretion, (i) deduct any such taxes from any payment otherwise due to the Employee or (ii) withhold such portion of the Shares that give rise to the withholding requirement in satisfaction of such requirement.


RAYOVAC CORPORATION

By:
		Kent J. Hussey
		President and Chief Operating Officer

EX-10.5 6 dex105.htm FORM OF SUPERIOR ACHIEVEMENT PROGRAM RESTRICTED STOCK AWARD AGREEMENT Form of Superior Achievement Program Restricted Stock Award Agreement

Exhibit 10.5

FORM OF AWARD AGREEMENT

RAYOVAC CORPORATION

SUPERIOR ACHIEVEMENT PROGRAM

RESTRICTED STOCK AWARD AGREEMENT

This agreement is made and entered into, effective as of (the “Effective Date”), by and between Rayovac Corporation, a Wisconsin corporation (the “Company”), and (the “Employee”) pursuant to The 2004 Rayovac Incentive Plan (the “Plan”) and the terms and conditions of this Rayovac Corporation Superior Achievement Program Stock Award Agreement (the “Agreement”) as set forth below.

2. Restrictions. Until the restrictions set forth in this Agreement or in the Plan lapse, the Shares shall be subject to the following restrictions:

(b) Transfer. The Shares may not be sold, assigned, transferred, exchanged, pledged, hypothecated or otherwise encumbered in any manner by the Employee.

(c) No Section 83(b) Election. The Employee agrees not to make, with respect to the Shares awarded pursuant to this Agreement, the election provided for under section 83(b) of the Internal Revenue Code of 1986, as amended (the “Code”).

3. Lapse of Restrictions.

(a) General. Subject to the terms of this Agreement, restrictions as to the Shares shall lapse as of , provided and to the extent that the performance goals set forth in Section 3(b) of this Agreement are satisfied. To the extent that the required performance goals are not satisfied, so that the restrictions on any Shares subject to this Agreement do not lapse as provided in the preceding sentence, the restrictions of any Shares remaining subject to restrictions will lapse as of , provided that the Employee’s employment with the Company and all of it’s subsidiaries and affiliates has not terminated before that date.

(b) Performance Goals.

(i) The restrictions on all Shares subject to this Agreement will lapse as of the date first set forth in Section 3(a) if the Employee is employed on that date and all of the Program’s performance goals established by the Board of Directors of the Company (the “Board”) (as determined by the Board in its sole discretion), are satisfied for the period beginning on and ending on (the “Performance Period”):

(A) The Company and all of its subsidiaries and affiliates achieve the target “Synergy Savings” during the Performance Period.

(B) The growth in the earnings per share on the Company’s Common Stock during the Performance Period equals or exceeds the target annual compound growth rate; and

(ii) If the employment requirement set forth in Section 3(b)(i) is satisfied and if the performance goals set forth in Section 3(b)(i) are not fully satisfied, but each would have been satisfied if the targets were set equal to 90% of the targets set forth in Section 3(b)(i), then the restrictions will lapse as of on that percentage of the Shares subject to this Agreement that is equal to the sum (A) 50%, plus (B) the product of (1) 5% multiplied by (2) the number of full percentage points by which the weighted average of the percentages of target reached with respect to each of the three performance goals (calculated by limiting the percentage of target taken into account with respect to any performance goal to 100%) exceeds 90%. For the purpose of the preceding sentence, the performance goal set forth in Section 3(b)(i)(A) shall be weighted 50% and the performance goals set forth in Sections 3(b)(i)(B) and (C) shall each be weighted 25%.

(c) Forfeiture of Shares. Notwithstanding anything contained herein to the contrary, upon the Employee’s termination of employment with the Company and all of its subsidiaries and affiliates, the Employee shall forfeit all Shares subject to restrictions that have not lapsed as of such termination, and the Employee shall have no further rights with respect to the Shares. Shares that are no longer subject to restrictions at the time of the Employee’s termination shall not be forfeited.

(d) Termination of Restrictions. Notwithstanding the foregoing, the Compensation Committee of the Board shall have the power, in its sole discretion, to accelerate the expiration of the applicable restriction period, to waive any restriction with respect to any part or all of the Shares or to waive the forfeiture of Shares and retain restrictions on Shares that would have been forfeited pursuant to the terms of this Agreement.

7. Miscellaneous.

(b) Dividends. The Company shall have the discretion to pay to the Employee any special or regular cash dividends declared by the Board, or to defer the payment of cash dividends until the expiration of the restrictions with respect to the Shares, or reinvest such amounts in additional shares of restricted stock. Any cash payments of dividends that become payable to the Employee with respect to any of the Shares that remain subject to restrictions hereunder may, in the Company’s discretion, be net of an amount sufficient to satisfy any federal, state and local withholding tax requirements with respect to such dividends.

(e) Payment of Taxes Due. No later than the date as of which an amount first becomes includible in the gross income of the Employee for income tax purposes with respect to the Award (the “Triggering Date”), Employee shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, any Federal, state, local or foreign taxes of any kind required by law or applicable regulation to be withheld (collectively, “Taxes”) with respect to such amount. Withholding obligations arising from the Award may be settled with Common Stock, including the Shares that give rise to the withholding requirement. The obligations of the Company to deliver the Shares shall be conditional on such payment or arrangements. The Company, its subsidiaries and its affiliates shall, to the extent permitted by law, have the right to, at the Company’s election and in the Company’s sole discretion, (i) deduct any such taxes from any payment otherwise due to the Employee or (ii) withhold such portion of the Shares that give rise to the withholding requirement in satisfaction of such requirement.

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RAYOVAC CORPORATION

By:
		David A. Jones
		Chairman of the Board and Chief Executive Officer

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