As filed with the Securities and Exchange Commission on March 24,
1999
Registration No. 333-71747
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
POST-EFFECTIVE AMENDMENT NO. 2
ON FORM S-8
TO
FORM S-4
Registration Statement
under
The Securities Act of 1933
_________________________
Newell Co.
(Exact name of registrant as specified in its charter)
Delaware 36-3514169
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Newell Center
29 East Stephenson Street
Freeport, Illinois 61032
(Address of principal executive offices, including zip code)
RUBBERMAID INCORPORATED AMENDED AND RESTATED
1989 STOCK INCENTIVE AND OPTION PLAN
(Full title of the plan)
Dale L. Matschullat
Vice President-General Counsel
6833 Stalter Drive, Suite 101
Rockford, Illinois 61108
(Name and address of agent for service)
(815) 381-8110
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
Frederick L. Hartmann
Lauralyn G. Bengel
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
___________________________
CALCULATION OF REGISTRATION FEE
2
Proposed
maximum Proposed
Amount offering maximum
Title of Each Class of to be price aggregate Amount of
Securities to be Registered registered per share offering price registration fee
--------------------------- ---------- --------- -------------- ----------------
Common Stock, $1.00 par value
(including associated Common Stock 2,315,316 (1) (1) (1)
Purchase Rights)
(1) Registration fee with respect to these shares was previously paid
in connection with the filing of Newell Co.'s Registration
Statement on Form S-4 (File No. 333-71747) which was declared
effective February 4, 1999. See Explanatory Note below.
EXPLANATORY NOTE
Newell Co. hereby amends its Registration Statement on Form S-4
(File No. 333-71747), effective February 4, 1999 by filing this Post-
Effective Amendment No. 2 on Form S-8 relating to 2,315,316 shares of
common stock, $1.00 par value per share (including associated Common
Stock Purchase Rights) (the"Common Stock") of Newell Co. issuable
under the Rubbermaid Incorporated Amended and Restated 1989 Stock
Incentive and Option Plan (the "Plan").
On March 24, 1999, by virtue of a merger of Rooster Company, a
wholly owned subsidiary of Newell Co., with and into Rubbermaid
Incorporated, each outstanding share of common stock of Rubbermaid was
converted into .7883 shares of Common Stock.
Pursuant to the merger agreement, Rubbermaid and Newell Co. have
taken the necessary actions to cause the Common Stock to be issuable
under the Plan. Accordingly, Rubbermaid's common stock is no longer
issuable under the Plan.
This Registration Statement relates to 2,315,316 shares of Common
Stock registered on the Form S-4 that were not issued at the time of
the merger and that are issuable under the Plan on and after the
merger.
3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Newell Co. (the "Registrant")
are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998;
(b) The Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on March 11, 1999;
(c) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-B filed
on June 30, 1987; and
(d) The description of the Registrant's Rights contained in the
Registration Statement on Form 8-A12B dated August 28, 1998.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Registrant's Common Stock to be issued
pursuant to the Rubbermaid Incorporated Amended and Restated 1989
Stock Incentive and Option Plan has been passed upon for the
Registrant by Schiff Hardin & Waite, Chicago, Illinois. Schiff Hardin
& Waite has advised the Registrant that a member of the firm
participating in the representation of the Registrant owns
approximately 3,900 shares of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware law allows a corporation to eliminate
the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except in cases where the director breached his or her duty
of loyalty to the corporation or its stockholders, failed to act in
good faith, engaged in intentional misconduct or a knowing violation
of the law, willfully or negligently authorized the unlawful payment
of a dividend or approved an unlawful stock redemption or repurchase
or obtained an improper personal benefit. The Registrant Charter
contains a provision which eliminates directors' personal liability as
set forth above.
The Charter and the Bylaws of the Registrant provide in effect
that the Registrant shall indemnify its directors and officers to the
extent permitted by the Delaware law. Section 145 of the Delaware law
provides that a Delaware corporation has the power to indemnify its
directors, officers, employees and agents in certain circumstances.
4
Subsection (a) of Section 145 of the Delaware law empowers a
corporation to indemnify any director, officer, employee or agent, or
former director, officer, employee or agent, who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding
provided that such director, officer, employee or agent acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, provided that such director,
officer, employee or agent had no reasonable cause to believe that his
or her conduct was unlawful.
Subsection (b) of Section 145 of the Delaware law empowers a
corporation to indemnify any director, officer, employee or agent, or
former director, officer, employee or agent, who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit
provided that such person acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery shall determine that despite the
adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
Section 145 further provides that to the extent that a director
or officer or employee of a corporation has been successful in the
defense of any action, suit or proceeding referred to in subsections
(a) and (b) or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection
therewith; that indemnification provided by Section 145 shall not be
deemed exclusive of any other rights to which the party seeking
indemnification may be entitled; and the corporation is empowered to
purchase and maintain insurance on behalf of a director, officer,
employee or agent of the corporation against any liability asserted
against him or her or incurred by him or her in any such capacity or
arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145; and that, unless indemnification is
ordered by a court, the determination that indemnification under
subsections (a) and (b) of Section 145 is proper because the director,
officer, employee or agent has met the applicable standard of conduct
under such subsections shall be made by (1) a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or
if such directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders.
The Registrant has in effect insurance policies for general
officers' and directors' liability insurance covering all of the
Registrant's officers and directors. The Registrant also has entered
into indemnification agreements with each of its officers and
5
directors that provide that the officers and directors will be
entitled to their indemnification rights as they existed at the time
they entered into the agreements, regardless of subsequent changes in
the Registrant's indemnification policy.
Pursuant to an Agreement and Plan of Merger by and between Newell
Co., Rooster Company and Rubbermaid Incorporated dated as of October
20, 1998 (the "Merger Agreement"), the Registrant will, to the fullest
extent not prohibited by applicable law, indemnify, defend and hold
harmless each person who is now, or has been at any time prior to the
date of the merger agreement, or who becomes prior to the Effective
Time (as defined in the Merger Agreement), an officer, director of
employee of Rubbermaid or any of its subsidiaries against any losses,
expenses, claims, damages or liabilities (1) arising out of acts or
omissions occurring at or prior to the Effective Time that are based
on or arising out of the fact that such person is or was a director,
officer or employee of Rubbermaid or any of its subsidiaries or served
as a fiduciary under or with respect to any Rubbermaid employee
benefit plan and (2) to the extent they are based on or arise out of
the transactions contemplated by the Merger Agreement.
Additionally, for six years after the Effective Time, the
Registrant will maintain in effect Rubbermaid's current directors' and
officers' liability insurance covering acts or omissions occurring
prior to the Effective Time with respect to those persons who are
currently covered by Rubbermaid's directors' and officers' liability
insurance policy on terms with respect to such coverage and amount no
less favorable than those of such policy in effect on the date of the
Merger Agreement; provided that the Registrant may substitute policies
of the Registrant or its subsidiaries containing terms with respect to
coverage and amount no less favorable to such directors or officers.
The Registrant will not be required to pay aggregate premiums for the
insurance described in this paragraph in excess of 200% of the
aggregate premiums paid by Rubbermaid in 1998, except that if the
annual premiums of such insurance coverage exceed such amount, the
Registrant will be obligated to obtain a policy with the best coverage
available, in the reasonable judgment of the Registrant's Board, for a
cost up to but not exceeding such amount.
For six years after the Effective Time, the Registrant will also
maintain in effect Rubbermaid's current fiduciary liability insurance
policies for employees who serve or have served as fiduciaries under
any Rubbermaid benefit plan with coverages and in amounts no less
favorable than those of such policy in effect on the date of the
Merger Agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed herewith or incorporated by reference herein
are set forth in the Exhibit Index filed as part of this registration
statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
6
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and each filing
of the Plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
7
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities
Act of 1933, the Registrant hereby certifies that it has reasonable
grounds to believe that it meets all the requirements for filing on
Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the
City of Rockford, State of Illinois, on the 10th day of March, 1999.
NEWELL CO.
By: /s/ Dale L. Matschullat
------------------------------
Dale L. Matschullat
Vice President - General
Counsel
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
*John J. McDonough Vice Chairman and
--------------------------- Chief Executive
John J. McDonough Officer (Principal
Executive Officer)
and Director
*Thomas A. Ferguson, Jr. President and Chief
--------------------------- Operating Officer
Thomas A. Ferguson, Jr. and Director
*Donald L. Krause Senior Vice
--------------------------- President -
Donald L. Krause Corporate
Controller
(Principal
Accounting Officer)
*William T. Alldredge Vice President -
--------------------------- Finance (Principal
William T. Alldredge Financial Officer)
*William P. Sovey Chairman of the
--------------------------- Board of Directors
William P. Sovey
*Alton F. Doody Director
---------------------------
Alton F. Doody
8
Signature Title Date
--------- ----- ----
--------------------------- Director
Gary H. Driggs
*Daniel C. Ferguson Director
---------------------------
Daniel C. Ferguson
*Robert L. Katz Director
---------------------------
Robert L. Katz
*Elizabeth Cuthbert Millett Director
---------------------------
Elizabeth Cuthbert Millett
*Cynthia A. Montgomery Director
---------------------------
Cynthia A. Montgomery
*Allan P. Newell Director
---------------------------
Allan P. Newell
--------------------------- Director
Henry B. Pearsall
*By: /s/ Dale L. Matschullat March 10, 1999
--------------------------
Attorney-in-Fact
9
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
------ -------
4* Rights Agreement, dated as of August 6, 1998,
between Newell and First Chicago Trust Company
of New York (incorporated by reference to
Exhibit I to Newell's Registration Statement on
Form 8-A12B (Reg. No. 1-09608), filed with the
Commission on August 28, 1998).
5.1* Opinion of Schiff Hardin & Waite.
5.2 Supplemental Opinion of Schiff Hardin & Waite.
23.1* Consent of Arthur Andersen LLP.
23.2 Supplemental Consent of Arthur Andersen LLP.
23.3* Consent of Schiff Hardin & Waite (included in its
opinion filed as Exhibit 5.1 in this Registration
Statement).
23.4 Supplemental Consent of Schiff Hardin & Waite
(included in its opinion filed as Exhibit 5.2 in this
Registration Statement).
24* Power of Attorney (set forth on the signature page of
the S-4 Registration Statement).
___________________
* Previously filed.
EXHIBIT 5.2
-----------
SCHIFF HARDIN & WAITE
6600 Sears Tower, Chicago, Illinois 60606
(312) 258-5500
-----------------------------------------
March 23, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Re: Newell Co. Post-Effective Amendment on Form S-8
to Registration Statement on Form S-4
(Registration
No. 333-71747)
---------------------------------------------------
Ladies and Gentlemen:
We are acting as counsel for Newell Co. (the "Company") in
connection with the Company's filing with the Securities and Exchange
Commission of Post-Effective Amendment No. 2 on Form S-8 (the
"Amendment") to its Registration Statement on Form S-4 (Registration
No. 333-71747), which was declared effective on February 4, 1999 (the
"Registration Statement"). The Registration Statement covers the
shares of common stock, par value $1.00 per share, of the Company
(including the related common stock purchase rights) (the "Shares") to
be issued in connection with the merger of a wholly owned subsidiary
of the Company with Rubbermaid Incorporated, which is expected to
occur on March 24, 1999 and will result in Rubbermaid Incorporated
becoming a wholly owned subsidiary of the Company. The Amendment
covers the Shares that are issuable under the Rubbermaid Incorporated
1989 Amended and Restated Stock Incentive and Option Plan (the "Option
Plan") to participants who are active employees of Rubbermaid
Incorporated as of the merger date. The Shares are issuable upon (i)
the exercise of stock options under the Option Plan that were not
exercised prior to the merger date (the "Outstanding Options"); and
(ii) the attainment after the merger date of certain pre-established
performance goals (the "Performance Shares"). This opinion letter
supplements our opinion which was filed as Exhibit 5 to the
Registration Statement.
In connection with this supplemental opinion, we have examined
such corporate records, certificates and other documents and have made
such other factual and legal investigations as we have deemed
necessary or appropriate for the purposes of this opinion. Based on
the foregoing, it is our opinion that the Shares covered by the
Amendment have been duly authorized and, when issued upon the valid
exercise of the Outstanding Options or when issued as Performance
Shares in accordance with the provisions of the Option Plan, will be
legally issued, fully paid and nonassessable (except as may be limited
by Section 180.0622 of the Wisconsin Business Corporation law, which
provides that shareholders may be liable for an amount equal to the
par value of their shares for certain debts owing to employees of the
Company).
12
Securities and Exchange Commission
March 23, 1999
Page Two
We hereby consent to the filing of this supplemental opinion as
Exhibit 5.2 to the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Frederick L. Hartmann
--------------------------------
Frederick L. Hartmann
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the use of our
report dated January 27, 1999, included in Newell Co.'s Form 10-K for
the year ended December 31, 1998 and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
March 19, 1999