As filed with the Securities and Exchange Commission on March 24, 1999.
REGISTRATION NO. 333-
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-3
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)
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)
--------------------------
Approximate Date of Commencement of Proposed Sale to the Public:
From time to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered registered per share (1) offering price (1) registration fee
--------------------------- ---------- ------------- ------------------ ----------------
Common Stock, $1.00 par value (including 300,000 46.766 14,029,800 4,139
Common Stock Purchase Rights)
(1) Based upon $46.766 per share, the average of the high and low
sales prices of the Common Stock as reported on the New York
Stock Exchange on March 22, 1999. (See Rules 457(c) and 457(b)
of the Securities Act of 1933).
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement will thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until
this Registration Statement shall become effective on such date as the
Commission acting pursuant to said Section 8(a) may determine.
SUBJECT TO COMPLETION - DATED MARCH 24, 1999
PROSPECTUS
NEWELL CO.
300,000 Shares
Common Stock, $1.00 Par Value
RUBBERMAID RETIREMENT PLAN
This Prospectus relates to shares of common stock of Newell Co.
which may be offered and sold under the Rubbermaid Retirement Plan.
Our common stock is traded on the New York Stock Exchange and the
Chicago Stock Exchange under the symbol "NWL." On March 19, 1999, the
closing sale price of the common stock on the New York Stock Exchange
was $47.25 per share.
The mailing address and telephone number of Newell's principal
executive offices are: 29 East Stephenson Street, Freeport, Illinois
61032; telephone: (815) 235-4171.
This Prospectus should be retained for future reference.
--------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities
or passed upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
--------------------
The date of this Prospectus is March ___, 1999
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
You should rely only on the information provided or incorporated by
reference in this Prospectus. The information in this Prospectus is
accurate as of the dates on these documents, and you should not assume
that it is accurate as of any other date.
TABLE OF CONTENTS
PAGE
WHERE YOU CAN FIND MORE INFORMATION . . . . . . . . . . . . . . . . 5
NEWELL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
DESCRIPTION OF THE RUBBERMAID RETIREMENT PLAN . . . . . . . . . . . 7
WHERE WILL MY RETIREMENT INCOME COME FROM? . . . . . . . . . . . 8
WHEN DO I BECOME A PARTICIPANT? . . . . . . . . . . . . . . . . . 8
NEW HIRES . . . . . . . . . . . . . . . . . . . . . . . . . 8
TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . 8
CONTINUATION OF PARTICIPATION -- PLAN MERGERS . . . . . . . 8
ESTABLISHMENT OF ACCOUNT . . . . . . . . . . . . . . . . . . 8
WHAT IS "COVERED EMPLOYMENT"? . . . . . . . . . . . . . . . . . . 8
ARE THERE ANY SPECIAL RULES THAT APPLY TO ME? . . . . . . . . . . 9
WHO IS THE RECORDKEEPER UNDER THE RUBBERMAID RETIREMENT PLAN? . . 9
WHEN MAY I START MAKING SALARY DEFERRAL CONTRIBUTIONS TO THE
RUBBERMAID RETIREMENT PLAN? . . . . . . . . . . . . . . . . 9
HOW DO I MAKE SALARY DEFERRAL CONTRIBUTIONS TO THE RUBBERMAID
RETIREMENT PLAN? . . . . . . . . . . . . . . . . . . . . . . 9
WHAT ARE THE TAX CONSEQUENCES OF MY ELECTION TO MAKE SALARY
DEFERRAL CONTRIBUTIONS TO THE RUBBERMAID RETIREMENT PLAN? . 10
WHEN DO I BECOME ELIGIBLE TO RECEIVE THE RUBBERMAID MATCHING
CONTRIBUTION? . . . . . . . . . . . . . . . . . . . . . . . 10
WHEN DO I BECOME ELIGIBLE TO SHARE IN THE ANNUAL RUBBERMAID
CONTRIBUTION? . . . . . . . . . . . . . . . . . . . . . . . 10
WHAT IS THE ANNUAL RUBBERMAID CONTRIBUTION MADE TO MY ACCOUNT? . 11
CAN I MAKE A ROLLOVER CONTRIBUTION TO THE PLAN? . . . . . . . . . 11
WHAT IS A "YEAR OF SERVICE?" . . . . . . . . . . . . . . . . . . 11
WHAT IS AN "HOUR OF SERVICE"? . . . . . . . . . . . . . . . . . . 11
MAY ASSOCIATES MAKE VOLUNTARY CONTRIBUTIONS TO THE RUBBERMAID
RETIREMENT PLAN? . . . . . . . . . . . . . . . . . . . . . . 12
HOW WILL MY MONEY BE INVESTED? . . . . . . . . . . . . . . . . . 12
WHEN MAY I RECEIVE DISTRIBUTION OF AMOUNTS HELD IN MY ACCOUNT
UNDER THE RUBBERMAID RETIREMENT PLAN? . . . . . . . . . . . 13
WHEN DO I BECOME ELIGIBLE TO RETIRE? . . . . . . . . . . . . . . 13
2
WHAT HAPPENS IF I BECOME DISABLED WHILE EMPLOYED BY MY ADOPTING
EMPLOYER? . . . . . . . . . . . . . . . . . . . . . . . . . 14
WHAT HAPPENS IF I DIE WHILE EMPLOYED BY RUBBERMAID OR A
SUBSIDIARY OR DIVISION OF RUBBERMAID? . . . . . . . . . . . 14
WHAT HAPPENS IF MY EMPLOYMENT TERMINATES FOR ANY REASON OTHER
THAN DEATH OR DISABILITY? . . . . . . . . . . . . . . . . . 15
HOW DO I DETERMINE THE VESTED PART OF MY ACCOUNT? . . . . . . . . 15
WHAT IS A "BREAK IN SERVICE?" . . . . . . . . . . . . . . . . . . 16
WHAT HAPPENS TO THE PART OF MY ACCOUNT THAT IS NOT VESTED IF MY
EMPLOYMENT TERMINATES? . . . . . . . . . . . . . . . . . . . 16
WHAT IF I AM REHIRED? . . . . . . . . . . . . . . . . . . . . . . 16
RESTORING PAST YEARS OF SERVICE . . . . . . . . . . . . . . 16
RE-CREDITING FORFEITED AMOUNTS . . . . . . . . . . . . . . . 17
HOW ARE BENEFITS DISTRIBUTED? . . . . . . . . . . . . . . . . . . 17
WHAT FORMS OF PAYMENT ARE AVAILABLE TO ME? . . . . . . . . . . . 17
RUBBERMAID PROFIT SHARING PLAN PARTICIPANTS . . . . . . . . . . . 18
FORMS OF PAYMENT FOR RUBBERMAID PROFIT SHARING PLAN
PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . 19
WHAT FORMS OF PAYMENT ARE AVAILABLE TO MY BENEFICIARY? . . . . . 20
FORM OF PAYMENT TO BENEFICIARY OF RUBBERMAID PROFIT SHARING
PLAN PARTICIPANT . . . . . . . . . . . . . . . . . . . 20
WHO IS MY BENEFICIARY UNDER THE RUBBERMAID RETIREMENT PLAN? . . . 20
SPECIAL PROVISIONS FOR DESIGNATING BENEFICIARY OF RUBBERMAID
PROFIT SHARING PLAN PARTICIPANT . . . . . . . . . . . . 21
HOW DO I APPLY FOR BENEFITS? . . . . . . . . . . . . . . . . . . 21
ARE TAXES REQUIRED TO BE WITHHELD FROM MY DISTRIBUTION? . . . . . 21
WHAT OTHER TAX RULES APPLY TO MY DISTRIBUTION? . . . . . . . . . 22
IS MY ACCOUNT SUBJECT TO CLAIMS OF CREDITORS? . . . . . . . . . . 23
ARE BENEFITS INSURED BY THE PBGC? . . . . . . . . . . . . . . . . 23
CAN I BORROW FROM THE RUBBERMAID RETIREMENT PLAN? . . . . . . . . 23
CAN I WITHDRAW MY ASSOCIATE VOLUNTARY CONTRIBUTIONS TO THE
RUBBERMAID RETIREMENT PLAN? . . . . . . . . . . . . . . . . 23
CAN THE RUBBERMAID RETIREMENT PLAN BE TERMINATED? . . . . . . . . 24
3
CAN I GET MORE INFORMATION ABOUT THE RUBBERMAID RETIREMENT PLAN? 24
WHO PAYS PLAN EXPENSES? . . . . . . . . . . . . . . . . . . . . . 24
HOW ARE PLAN EXPENSES PAID? . . . . . . . . . . . . . . . . . . . 25
WHAT LAWS GOVERN THE RUBBERMAID RETIREMENT PLAN? . . . . . . . . 25
WHAT ARE MY ERISA PROTECTED RIGHTS? . . . . . . . . . . . . . . . 26
HOW DO I APPEAL A DENIAL OF MY CLAIM FOR BENEFITS? . . . . . . . 27
ADDITIONAL INFORMATION . . . . . . . . . . . . . . . . . . . . . 28
PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . 28
AGENT FOR SERVICE . . . . . . . . . . . . . . . . . . . . . 28
SPONSOR . . . . . . . . . . . . . . . . . . . . . . . . . . 28
EMPLOYER ID NUMBER . . . . . . . . . . . . . . . . . . . . . 28
PLAN NUMBER . . . . . . . . . . . . . . . . . . . . . . . . 28
RECORDKEEPER . . . . . . . . . . . . . . . . . . . . . . . . 28
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Appendix A -- Adopting Employers and Locations . . . . . . . . . 29
APPENDIX B -- SPECIAL RULES . . . . . . . . . . . . . . . . . . . 30
APPENDIX C -- RUBBERMAID UNITIZED STOCK FUND . . . . . . . . . . 31
FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
APPENDIX D -- SUMMARY OF FINANCIAL DATA FOR INVESTMENT FUNDS --
1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
RATES OF RETURN . . . . . . . . . . . . . . . . . . . . . . 36
APPENDIX E -- STABLE VALUE FUND . . . . . . . . . . . . . . . . . 37
INVESTMENT OBJECTIVE . . . . . . . . . . . . . . . . . . . . 37
FUND DESCRIPTION . . . . . . . . . . . . . . . . . . . . . . 38
RISK CONTROL . . . . . . . . . . . . . . . . . . . . . . . . 38
RATING DEFINITION . . . . . . . . . . . . . . . . . . . . . 39
PERFORMANCE DATA . . . . . . . . . . . . . . . . . . . . . . 39
INVESTOR TYPE . . . . . . . . . . . . . . . . . . . . . . . 39
FUND MANAGER . . . . . . . . . . . . . . . . . . . . . . . . 40
FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . . 41
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . 41
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . 41
DESCRIPTION OF COMMON SHARES . . . . . . . . . . . . . . . . . . . . 41
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any document
we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-
SEC-0330 for further information on the public reference rooms. Our
SEC filings are also available to the public at the SEC's web site at
http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this
prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to
be part of this prospectus, and later information that we file with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future
filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until our offering is completed:
1. Annual Report on Form 10-K for the year ended December 31, 1998;
2. Current Report on Form 8-K filed with the SEC on March 11, 1999;
3. The description of our common stock contained in Newell's
Registration Statement on Form 8-B filed with the Securities and
Exchange Commission on June 30, 1987; and
4. The description of Newell's Rights contained in our Registration
Statement on Form 8-A12B dated August 28, 1998.
You may request a copy of these filings at no cost, by writing to
or telephoning us at the following address:
Newell Co.
6833 Stalter Drive
Suite 101
Rockford, Illinois 61108
Tel: 1-800-424-1941
Attn: Office of Investor Relations
You should rely only on the information incorporated by reference
or provided in this prospectus. We have not authorized anyone else to
provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus is accurate
as of any date other than the date on the front of the document.
NEWELL
Newell is a manufacturer and full-service marketer of staple consumer
products sold to high-volume purchasers, including home centers and
hardware stores, office superstores and contract stationers, discount
stores and warehouse clubs, department and specialty stores, and drug
5
and grocery stores. Newell's basic business strategy is to merchandise
a multi-product offering of brand name consumer products, which are
concentrated in product categories with relatively steady demand not
dependent on changes in fashion, technology or season, and to
differentiate itself by emphasizing superior customer service.
Newell's multi-product offering consists of staple consumer products
in three major product groups: Hardware and Home Furnishings, Office
Products, and Housewares.
Newell believes that its primary competitive strengths are
superior customer service, innovative marketing and merchandising
programs, a broad multi-product offering, market leadership in
virtually all product categories, decentralized manufacturing and
marketing, centralized administration, and experienced management.
Newell uses industry leading technology which contributes to its
consistent on time delivery of products to its customers.
Newell's principal corporate offices are located at the Newell
Center, 29 East Stephenson Street, Freeport, Illinois 61032, and its
telephone number at these offices is 1-815-235-4171.
On March 24, 1999, Rubbermaid Incorporated was merged with
Newell. Rubbermaid and its subsidiaries manufacture, market, sell and
distribute products for resale in the consumer, commercial,
industrial, institutional, specialty, agricultural and contract
markets. The items produced and marketed by Rubbermaid are principally
in the home, juvenile, infant and commercial products categories, and
include such product lines as: housewares, hardware, storage and
organizational products, seasonal items, leisure and recreational
products, infant furnishings, children's toys and products, commercial
and industrial maintenance products, home health care products,
sanitary maintenance items, and food service products. Rubbermaid's
broad range of products are sold and distributed through its own
sales personnel and manufacturers' agents to a variety of retailers
and wholesalers, including discount stores and warehouse clubs, toy
stores, home centers and hardware stores, supermarkets, catalog
showrooms and distributors serving institutional markets.
Rubbermaid's basic strategy is to market branded, high-quality
products that offer high value to customers and consumers. Value is
that best combination of quality, service, timeliness, innovation and
price as perceived by the user.
6
DESCRIPTION OF THE RUBBERMAID RETIREMENT PLAN
HIGHLIGHTS OF THE RUBBERMAID RETIREMENT PLAN
On March 24, 1999 (i) Rubbermaid merged into Newell and became a wholly
owned subsidiary of Newell and (ii) Newell changed its name to Newell
Rubbermaid Inc. In connection with this corporate merger, each share of
Rubbermaid Common Stock held under the Plan as of the merger date has
been converted into .7883 shares of Newell Rubbermaid Common Stock. The
portion of your Plan account that has been converted into Newell
Rubbermaid Common Stock will continue to be subject to your current
investment direction, unless and until you change your investment
direction in accordance with applicable Plan procedures. All
other Plan provisions and procedures remain unchanged.
This summary contains an explanation of a very valuable benefit: the
Rubbermaid Retirement Plan (formerly known as the Rubbermaid
Incorporated Associates' Profit Sharing Retirement Plan). This
summary plan description describes the plan as in effect on July 1,
1998, except as otherwise noted.
SOME OF THE KEY FEATURES OF THE
RUBBERMAID RETIREMENT PLAN ARE:
401(k) Feature:
* You can make "salary deferral" contributions on a regular basis
through a payroll deduction program. The amount you elect to
contribute can be a whole percentage of your eligible
compensation of not less than one percent and not more than 12
percent unless limited by Rubbermaid for the plan year.
* Your "salary deferral" contributions and earnings on them are
tax-deferred. That means you pay no Federal, and in most cases,
no state income taxes on your savings until you take them out of
the Rubbermaid Retirement Plan.
* For each dollar that you contribute to the Rubbermaid Retirement
Plan up to a maximum of 6% of your eligible compensation,
Rubbermaid will contribute $.50. Earnings on Rubbermaid matching
contributions are tax-deferred.
* You can also make rollover contributions from other qualified
retirement plans or a conduit IRA to the Rubbermaid Retirement
Plan.
ANNUAL RUBBERMAID CONTRIBUTION:
* Rubbermaid makes an annual contribution to the Rubbermaid
Retirement Plan for eligible associates based on their eligible
compensation.
* In order to receive the annual Rubbermaid contribution, you must
be a participant in covered employment on the last day of the
calendar year and have worked or been credited with 1,000 or more
hours of service during the calendar year. (Special rules apply
in cases of death, total and permanent disability, or military
service.)
INVESTMENT CONTROL:
* You control the investment among the available funds of all
amounts held in your account under the Rubbermaid Retirement
Plan.
The Rubbermaid Retirement Plan is an important benefit. Please make
sure you discuss it with your family.
7
RUBBERMAID RETIREMENT PLAN SUMMARY PLAN DESCRIPTION
WHERE WILL MY RETIREMENT INCOME COME FROM?
Retirement planning is a shared responsibility between you, your
employer, and the government. The government provides Social Security
benefits. Rubbermaid contributes to the Rubbermaid Retirement Plan on
your behalf. You can also contribute to the Rubbermaid Retirement Plan
on a tax-deferred basis through regular payroll withholding.
WHEN DO I BECOME A PARTICIPANT?
NEW HIRES
If you are hired into covered employment, you become a participant in
the Rubbermaid Retirement Plan as of the January 1 which immediately
follows your date of hire. If you are hired on January 1, you will
immediately become a participant in the Rubbermaid Retirement Plan.
TRANSFERS
If you transfer into covered employment, you become a participant in
the Rubbermaid Retirement Plan on the later of (1) your transfer date
or (2) the January 1 that coincides with or immediately follows your
original date of hire by Rubbermaid or any subsidiary or division of
Rubbermaid.
CONTINUATION OF PARTICIPATION -- PLAN MERGERS
Effective April 1, 1995, the Rubbermaid Commercial Products Inc.
Associates' Profit Sharing Retirement Plan and the Rubbermaid
Incorporated Profit Sharing Plan were merged into the Rubbermaid
Retirement Plan. If you were a participant in the Rubbermaid
Commercial Products Inc. Associates' Profit Sharing Retirement Plan or
the Rubbermaid Incorporated Profit Sharing Plan on March 31, 1995, and
you continue in covered employment, you automatically became a
participant in the amended and restated Rubbermaid Retirement Plan on
April 1, 1995.
ESTABLISHMENT OF ACCOUNT
When you become a participant in the Rubbermaid Retirement Plan, an
account is established in your name to hold your salary deferral
contributions, your Rubbermaid matching contributions, your rollover
contributions and your share of the annual Rubbermaid contribution,
and investment earnings on those amounts.
WHAT IS "COVERED EMPLOYMENT"?
You are in "covered employment" if you are employed by an adopting
employer at a plant, division, or other business operation to which
8
coverage has been extended and you are not covered by a collective
bargaining agreement. Adopting employers and covered operations are
listed at the end of this summary plan description in Appendix A.
ARE THERE ANY SPECIAL RULES THAT APPLY TO ME?
If you previously participated in another plan that was merged into
the Rubbermaid Retirement Plan or if you are employed by an employer
that was acquired by Rubbermaid or a subsidiary of Rubbermaid, special
rules may apply to you and/or all or a part of your account under the
Rubbermaid Retirement Plan. Additionally, certain portions of the
Rubbermaid Retirement Plan, such as the annual Rubbermaid
contribution, are not available to associates of certain adopting
employers. A description of these special rules which either
supersede or supplement the rules otherwise outlined in this summary
plan description are listed in Appendix B.
WHO IS THE RECORDKEEPER UNDER THE RUBBERMAID RETIREMENT PLAN?
Rubbermaid has hired Fidelity Institutional Retirement Services
Company ("Fidelity") as recordkeeper for the Rubbermaid Retirement
Plan. Fidelity processes many of the elections you will make under the
Rubbermaid Retirement Plan including your election to make salary
deferral contributions to the Rubbermaid Retirement Plan.
In addition, Fidelity also processes your elections regarding rollover
contributions, investment of your account, designation of a
beneficiary to receive distribution of your remaining account if you
die before your account is distributed in full, receipt of a loan from
your account, and receipt of a withdrawal or distribution from your
account. If you have any questions regarding the procedures for
conducting any of these transactions, you should contact Fidelity
directly at 1-800-301-4015.
WHEN MAY I START MAKING SALARY DEFERRAL CONTRIBUTIONS TO THE
RUBBERMAID RETIREMENT PLAN?
Upon becoming a participant, you may elect to start making salary
deferral contributions to the Rubbermaid Retirement Plan through
Fidelity, in accordance with rules and procedures prescribed by
Rubbermaid. For more information regarding the applicable rules and
procedures, please contact your Human Resources department.
Your election will be given effect as soon as reasonably practicable
after it is received by Fidelity.
HOW DO I MAKE SALARY DEFERRAL CONTRIBUTIONS TO THE RUBBERMAID
RETIREMENT PLAN?
You make salary deferral contributions through regular payroll
deductions. You designate the percentage of your eligible compensation
9
that you wish to contribute to the Rubbermaid Retirement Plan as
salary deferral contributions, and that amount is deducted from each
paycheck and contributed to the Rubbermaid Retirement Plan on your
behalf. The percentage you designate must be a whole number of not
less than one and not more than 12 percent unless limited by
Rubbermaid for the plan year. You may at any time change your
election to make or not to make salary deferral contributions from
future compensation.
WHAT ARE THE TAX CONSEQUENCES OF MY ELECTION TO MAKE SALARY DEFERRAL
CONTRIBUTIONS TO THE RUBBERMAID RETIREMENT PLAN?
Your salary deferral contributions to the Rubbermaid Retirement Plan
are not subject to Federal income tax until they are distributed or
withdrawn from the Rubbermaid Retirement Plan. In addition, the income
and appreciation on your salary deferral contributions are not subject
to Federal income tax while held by the Trustee and are not includable
in your taxable income until distributed or withdrawn.
Your salary deferral contributions are, however, "wages" subject to
Social Security tax up to the amount of the contribution and benefit
base as determined under Section 230 of the Social Security Act. In
addition, your salary deferral contributions are subject to the
Medicare portion of the FICA taxes regardless of income level.
WHEN DO I BECOME ELIGIBLE TO RECEIVE THE RUBBERMAID MATCHING
CONTRIBUTION?
If you are eligible and you elect to make salary deferral
contributions to the Rubbermaid Retirement Plan, Rubbermaid will make
a matching contribution each payroll period equal to 50% of the first
6% of your eligible compensation contributed to the Rubbermaid
Retirement Plan as a salary deferral contribution for the payroll
period.
WHEN DO I BECOME ELIGIBLE TO SHARE IN THE ANNUAL RUBBERMAID
CONTRIBUTION?
Annual Rubbermaid contributions are made to the Rubbermaid Retirement
Plan and shared among eligible participants. To be eligible you must:
* be a participant,
* be employed by an adopting employer, that participates in the
annual Rubbermaid contribution, on the last day of the plan year
(i.e., December 31), unless you terminated employment because of
death, total and permanent disability, or military service and
you received eligible compensation from your adopting employer
for the plan year, and
10
* have been credited with 1,000 or more hours of service during the
plan year.
WHAT IS THE ANNUAL RUBBERMAID CONTRIBUTION MADE TO MY ACCOUNT?
Generally, the amount that Rubbermaid contributes to the Rubbermaid
Retirement Plan each year on behalf of eligible participants is equal
to the following:
* six percent of each eligible participant's eligible compensation
(as defined below) for the plan year, plus
* an additional percentage (not to exceed three percent) of each
eligible participant's eligible compensation determined based on
improvement in the Economic Value Added (EVA) for Rubbermaid and
all subsidiaries and divisions of Rubbermaid.
ELIGIBLE COMPENSATION IS YOUR BASE PAY, OVERTIME AND CERTAIN OTHER
EARNINGS THAT ARE PAID AS A SUBSTITUTE FOR BASE PAY OR A MODIFICATION
TO BASE PAY. IF YOU HAVE ANY QUESTIONS ABOUT WHAT CONSTITUTES
"ELIGIBLE COMPENSATION" FOR PURPOSES OF THE RUBBERMAID RETIREMENT
PLAN, CONTACT YOUR LOCAL HUMAN RESOURCES DEPARTMENT.
CAN I MAKE A ROLLOVER CONTRIBUTION TO THE PLAN?
If you are a covered employee of an adopting employer and you
previously participated in a qualified retirement plan of another
employer, any distribution you receive from such plan may be rolled
over into the Rubbermaid Retirement Plan. For information regarding
the rules and procedures applicable to rollover contributions, please
contact Fidelity. Your eligibility to participate in all other parts
of the Rubbermaid Retirement Plan is contingent on the satisfaction of
the eligibility requirements set forth on page 5 above.
WHAT IS A "YEAR OF SERVICE?"
A year of service is credited to you for each plan year (January 1 to
December 31) in which you have completed 1,000 or more hours of
service with Rubbermaid or any subsidiary or division of Rubbermaid or
a predecessor employer as set forth in Appendix B.
WHAT IS AN "HOUR OF SERVICE"?
An hour of service is credited for each hour for which you are
entitled to receive compensation from Rubbermaid or any subsidiary or
division of Rubbermaid or a predecessor employer as set forth in
Appendix B, whether or not you perform duties during such period.
However, hours of service are not credited to you for periods in which
you are absent from employment and receive compensation under a plan
maintained solely for the purpose of complying with workers'
compensation or unemployment compensation laws.
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Hours of service are also credited for certain periods during which
you are not entitled to payment. For example, you will receive credit
for hours of service during periods of approved absence or military
duty (if following your discharge from active military duty, you
return to employment with Rubbermaid or any subsidiary or division of
Rubbermaid while your re-employment rights are protected by Federal
law).
The number of hours of service credited to you during a period that
you are absent from employment will be equal to the number of hours
you would normally have been scheduled to work if you had not been
absent. Hours of service may be credited on the basis of approved
equivalencies rather than actual hours worked.
MAY ASSOCIATES MAKE VOLUNTARY CONTRIBUTIONS TO THE RUBBERMAID
RETIREMENT PLAN?
Prior law provided that associates could make other additional
deductible contributions and/or nondeductible contributions other than
salary deferral contributions. The law was changed in 1986 to
eliminate the allowance of deductible contributions and place severe
restrictions on nondeductible contributions. Because of the change in
the law, the Rubbermaid Retirement Plan does not allow any further
associate voluntary contributions. Associate voluntary contributions
made prior to the change remain in the Rubbermaid Retirement Plan.
HOW WILL MY MONEY BE INVESTED?
All contributions to the Rubbermaid Retirement Plan are transferred to
the Trustee to administer until they are paid out under the terms of
the Rubbermaid Retirement Plan. You are permitted to direct
investments of your account. The right to direct investments is
subject to certain limitations and restrictions. You may only invest
in the investment funds offered under the Rubbermaid Retirement Plan.
Two of the investment funds offered under the Rubbermaid Retirement
Plan are the Rubbermaid Unitized Stock Fund, which is invested
primarily in Rubbermaid common stock, and the Stable Value Fund, which
is managed by PRIMCO Capital Management. Information regarding these
two investment funds can be found in the Appendices at the end of this
summary plan description. The Appendices will be updated periodically.
The other investment funds available under the Rubbermaid Retirement
Plan are mutual funds that Rubbermaid has selected to offer you a wide
range of investment opportunities. Information regarding the mutual
funds and the rules for making investment elections is contained in
the separate investment materials available from Fidelity.
You can make two elections regarding investment of your account. One
election controls the investment of future salary deferral
contributions, Rubbermaid matching contributions and annual Rubbermaid
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contributions coming into your account. The other election controls
the investment of amounts currently held in your account.
You will receive a quarterly statement regarding the value of your
account.
It is intended that the Rubbermaid Retirement Plan satisfy the
requirements of Section 404(c) of the Employee Retirement Income
Security Act of 1974. As a result, Rubbermaid Retirement Plan
fiduciaries will not be liable for any losses resulting directly from
your exercise of investment control over your account under the
Rubbermaid Retirement Plan.
WHEN MAY I RECEIVE DISTRIBUTION OF AMOUNTS HELD IN MY ACCOUNT UNDER
THE RUBBERMAID RETIREMENT PLAN?
Generally, distribution of your account may not be made to you (or
your beneficiary) until you retire, die, or otherwise terminate
employment.
The following sections discuss in detail the timing of distributions,
the amounts that are distributable to you upon the occurrence of a
distribution event, and the forms of payment available for
distributions. However, if your employment terminates for any reason
and your distributable account balance is $5,000 or less, your entire
distributable account balance will be distributed to you (or your
beneficiary) in a lump sum payment as soon as administratively
practicable following your termination of employment. As a result, you
(or your beneficiary) would not have the ability to defer receipt of
benefits until a later date as described below nor to elect a form of
payment other than a lump sum.
WHEN DO I BECOME ELIGIBLE TO RETIRE?
The normal retirement age is 65, at which time you become fully vested
in all amounts being held in your account under the Rubbermaid
Retirement Plan regardless of your years of service. If you decide to
retire at normal retirement age, you may elect to receive all or a
portion of your account balance at that time or to defer payment to a
later date, but not later than the April 1 of the calendar year
following the calendar year in which you attain age 70-1/2.
You may elect to continue working for your adopting employer beyond
normal retirement age. In that event, you will continue to be eligible
to make salary deferral contributions and receive Rubbermaid matching
contributions under the Rubbermaid Retirement Plan and, to the extent
that you meet the applicable eligibility requirements, to share in the
annual Rubbermaid contribution to the Rubbermaid Retirement Plan until
your actual retirement. You may also elect to receive benefits from
the Rubbermaid Retirement Plan after you reach normal retirement age
even if you are still employed.
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WHAT HAPPENS IF I BECOME DISABLED WHILE EMPLOYED BY MY ADOPTING
EMPLOYER?
For periods of employer-approved leave due to disability, you will
continue to be a participant under the Rubbermaid Retirement Plan. You
will receive credit for hours of service, even though you are not
physically working, unless your leave is the result of an occupational
illness or injury. However, you will only be permitted to make salary
deferral contributions to the Rubbermaid Retirement Plan and to share
in Rubbermaid matching contributions and in the annual Rubbermaid
contribution to the Rubbermaid Retirement Plan during such leave to
the extent that you receive eligible compensation from your adopting
employer while on leave.
If while you are on employer-approved leave, it is determined that you
are totally and permanently disabled (as defined in the Rubbermaid
Retirement Plan), you will become fully vested in your account under
the Rubbermaid Retirement Plan regardless of your years of service and
you may elect to retire because of disability. You will be eligible to
receive a share of the annual Rubbermaid contribution for the year in
which you retire because of total and permanent disability, provided
you have received eligible compensation from your adopting employer
for that year.
If you retire because of total and permanent disability, you may elect
to receive all or a portion of your account balance at that time or to
defer distribution until a later date (but not beyond the April 1 of
the calendar year following the calendar year in which you attain age
70-1/2).
TOTAL AND PERMANENT DISABILITY IS DEFINED UNDER THE RUBBERMAID
RETIREMENT PLAN AS A PHYSICAL OR MENTAL CONDITION RESULTING FROM
BODILY INJURY, DISEASE OR MENTAL DISORDER WHICH RENDERS A PERSON
INCAPABLE OF PERFORMING ANY JOB FOR HIS ADOPTING EMPLOYER. AN
ASSOCIATE WILL NOT BE DEEMED TO BE TOTALLY AND PERMANENTLY DISABLED
UNLESS MEDICAL EVIDENCE OF THE DISABILITY IS SUBMITTED TO RUBBERMAID
BY A LICENSED PHYSICIAN AND EITHER:
* THE ASSOCIATE QUALIFIES FOR DISABILITY BENEFITS UNDER SOCIAL
SECURITY; OR
* IS ELIGIBLE UNDER THE RUBBERMAID HEALTH AND WELFARE BENEFIT PLAN
FOR LIFE INSURANCE WAIVER OF PREMIUM.
WHAT HAPPENS IF I DIE WHILE EMPLOYED BY RUBBERMAID OR A SUBSIDIARY OR
DIVISION OF RUBBERMAID?
If you die while you are employed by Rubbermaid or a subsidiary or
division of Rubbermaid, the total amount in your account will be fully
vested regardless of your years of service. Your account balance will
be payable to your beneficiary(ies).
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WHAT HAPPENS IF MY EMPLOYMENT TERMINATES FOR ANY REASON OTHER THAN
DEATH OR DISABILITY?
If your employment with Rubbermaid and all subsidiaries and divisions
of Rubbermaid terminates prior to your retirement, total and permanent
disability, or death, you might only be entitled to receive a part of
your account under the Rubbermaid Retirement Plan. The amount you will
be entitled to receive in such event is the vested part of your
account.
You may elect to receive all or a portion of the vested part of your
account balance at the time your employment terminates or to defer
distribution until a later date (but not beyond the April 1 of the
calendar year following the calendar year in which you attain age
70-1/2).
HOW DO I DETERMINE THE VESTED PART OF MY ACCOUNT?
You are always fully vested in the salary deferral contributions,
Rubbermaid matching contributions and rollover contributions and the
earnings on those contributions that are held in your account. You are
also always fully vested in the associate voluntary contributions and
the earnings on those contributions that were permitted to be made to
the Rubbermaid Retirement Plan prior to January 1, 1987 and which are
held in your account.
Your vested interest in the annual Rubbermaid contributions and the
earnings on those contributions that are held in your account is
determined based upon your years of service. If you have been credited
with seven years of service you are fully vested in the annual
Rubbermaid contributions and earnings held in your account.
If you have been credited with fewer than seven years of service, only
a part of the annual Rubbermaid contributions and earnings on them
that are held in your account will be "vested." The percentage of
those contributions and earnings that is vested is as follows:
Years of Service Vested Percentage
---------------- -----------------
1 0%
2 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
In general, all of your years of service with Rubbermaid or any
subsidiary or division of Rubbermaid apply to vesting. However, if
your employment with Rubbermaid and all subsidiaries and divisions of
Rubbermaid terminates, on re-employment you will receive no credit for
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years of service that took place prior to your termination unless
either:
* you had a vested interest in salary deferral contributions or
employer contributions held in your account at the time of the
termination; or
* the number of consecutive breaks in service you incur after the
termination is fewer than five.
WHAT IS A "BREAK IN SERVICE?"
If during any plan year you fail to complete more than 500 hours of
service, a break in service will occur.
WHAT HAPPENS TO THE PART OF MY ACCOUNT THAT IS NOT VESTED IF MY
EMPLOYMENT TERMINATES?
The nonvested part of your account will be held in a suspended account
in your name until the earlier of (1) the end of the plan year in
which your employment terminated or (2) the date you receive a
distribution from your account. If you are not rehired before that
date, you will lose (forfeit) any right to the nonvested amount. Any
forfeited amount will be used to offset the annual Rubbermaid
contribution for that plan year.
WHAT IF I AM REHIRED?
If you terminate employment with Rubbermaid and all subsidiaries or
divisions of Rubbermaid and later return to work with Rubbermaid or a
subsidiary or division of Rubbermaid, you should be concerned about
two things:
(1) whether your past years of service will be included with years of
service you earn after your re-employment in determining your
vested part of the annual Rubbermaid contributions held in your
account following your reemployment; and
(2) whether any amounts you forfeited because of your prior
termination will be re-credited to your account upon
reemployment.
RESTORING PAST YEARS OF SERVICE
Your years of service earned before your termination of employment
with Rubbermaid and all subsidiaries and divisions of Rubbermaid will
not be included with your years of service earned after your
re-employment unless one of the following applies:
* You made salary deferral contributions to the Rubbermaid
Retirement Plan before your termination of employment.
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* You were vested in part of the annual Rubbermaid contributions
held in your account.
* You are re-employed before you incur five breaks in service after
your termination.
If your past years of service are not restored on re-employment, you
will be treated as a new participant in the Rubbermaid Retirement Plan
and your vested part of the annual Rubbermaid contributions held in
your account will be determined based only on the years of service you
earn following your re-employment.
RE-CREDITING FORFEITED AMOUNTS
If you forfeited the nonvested part of your account when you
terminated employment with Rubbermaid and all subsidiaries and
divisions of Rubbermaid, the forfeited amounts will be recredited to
your account upon re-employment only if all of the following
requirements are met:
(1) you are re-employed with Rubbermaid or a subsidiary or division
of Rubbermaid before you incur five breaks in service following
the later of (i) your termination date or (ii) the date you
received distribution from your account because of your
termination;
(2) you resume covered employment within five years of your
re-employment date; and
(3) you re-pay any distribution you received from the Rubbermaid
Retirement Plan upon your prior termination (i) before you incur
five consecutive breaks in service following the distribution and
(ii) within five years of your reemployment date.
HOW ARE BENEFITS DISTRIBUTED?
There are various forms of payment by which benefits may be
distributed to you from the Rubbermaid Retirement Plan. The form of
payment depends on the elections you make. The rules under this
section apply to all distributions you will receive from the
Rubbermaid Retirement Plan, whether by reason of retirement,
termination or any other event which may result in a distribution of
benefits.
WHAT FORMS OF PAYMENT ARE AVAILABLE TO ME?
You can elect the form of payment which best suits you. All elections
must be made in accordance with procedures prescribed by Rubbermaid.
Any such election can generally be modified or revoked. The forms of
payment are:
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(1) Lump sum
(2) Periodic payments
You may elect any one or a combination of these forms.
For example, you may choose to receive part of your account balance in
a single lump sum payment and receive the remainder of the account in
installment payments over 10 years. IRS rules require that beginning
on the April 1 following the later of the calendar year in which you
retire or the calendar year in which you reach age 70-1/2, the form of
payment you elect must provide for distribution of your full account
balance over a period no longer than your life expectancy.
RUBBERMAID PROFIT SHARING PLAN PARTICIPANTS
Special provisions concerning distribution of your account apply to
you if you are a Rubbermaid Profit Sharing Plan participant. You are a
Rubbermaid Profit Sharing Plan participant if prior to April 1, 1995
you were employed by an employer that participated in the Rubbermaid
Profit Sharing Plan and you had an account under the Rubbermaid Profit
Sharing Plan that was transferred to the Rubbermaid Retirement Plan on
April 1, 1995. The following adopting employers participated in the
Rubbermaid Profit Sharing Plan:
(1) Rubbermaid Commercial Products Inc. at Cleveland, Tennessee;
(2) Rubbermaid Health Care Products at Statesville, North Carolina
(formerly Rubbermaid -- Statesville, Inc. and Carex Inc.);
(3) Rubbermaid-Cortland, Inc. at Cortland, New York;
(4) Rubbermaid Specialty (Seasonal) Products, Inc. at Centerville,
Iowa;
(5) Rubbermaid Specialty (Seasonal) Products, Inc. at Winfield,
Kansas;
(6) Rubbermaid Office Products, Inc. at Maryville, Tennessee
(7) Rubbermaid Office Products, Inc. at Carson, California;
(8) Rubbermaid Incorporated at Goodyear, Arizona;
(9) The Little Tikes Company at Hudson, Ohio;
(10) The Little Tikes Company at Sebring, Ohio;
(11) The Little Tikes Company at City of Industry, California;
(12) The Little Tikes Company (Missouri) at Aurora, Missouri;
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(13) The Little Tikes Company (Pennsylvania) at Shippensburg,
Pennsylvania; and
(14) Microcomputer Accessories, Inc. at Inglewood, California.
FORMS OF PAYMENT FOR RUBBERMAID PROFIT SHARING PLAN PARTICIPANTS
If you are a Rubbermaid Profit Sharing Plan participant, additional
forms of payment are available for distribution of that part of your
account that is attributable to your participation in the Rubbermaid
Profit Sharing Plan. The additional forms of payment are:
(1) Annuity
(2) Installment payments over a period not exceeding the joint life
expectancy of you and your beneficiary
Unless you elect one of the other available forms of payment,
distribution of that part of your account that is attributable to your
participation in the Rubbermaid Profit Sharing Plan will be made:
* in a single life annuity, if you are not married on the date
payment begins, or
* a 50% qualified joint and survivor annuity, if you are married on
the date payment begins.
If you elect to receive distribution in the form of an annuity, that
part of your account balance that is attributable to your
participation in the Rubbermaid Profit Sharing Plan will be used to
purchase the appropriate annuity from an insurance company. The cost
of purchasing an annuity can be significant relative to the total
account balance. All costs related to the purchase of this annuity
will be subtracted from your account balance.
If you are married on the date payment begins, you must have your
spouse's written consent to elect a form of payment other than the 50%
qualified joint and survivor annuity. Your spouse's consent must be
witnessed by a Notary Public.
A SINGLE LIFE ANNUITY PROVIDES EQUAL MONTHLY PAYMENTS TO YOU FOR YOUR
LIFE, WITH NO PAYMENTS CONTINUING AFTER YOUR DEATH.
A 50% QUALIFIED JOINT AND SURVIVOR ANNUITY PROVIDES EQUAL MONTHLY
PAYMENTS TO YOU FOR YOUR LIFE, WITH MONTHLY PAYMENTS CONTINUING TO
YOUR SURVIVING SPOUSE AFTER YOUR DEATH EQUAL TO 50% OF THE AMOUNT YOU
WERE RECEIVING WHEN YOU DIED. TO RECEIVE PAYMENTS UNDER THE 50%
QUALIFIED JOINT AND SURVIVOR ANNUITY, YOUR SURVIVING SPOUSE MUST BE
THE SAME SPOUSE TO WHOM YOU WERE MARRIED ON THE DATE PAYMENT BEGAN.
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WHAT FORMS OF PAYMENT ARE AVAILABLE TO MY BENEFICIARY?
If you die after distribution of your account balance has begun,
distribution will continue to your beneficiary(ies) in the same form
of payment that you were receiving, unless your beneficiary elects a
more rapid form of payment.
If you die before distribution of your account balance has begun, your
beneficiary(ies) can elect any one or a combination of the following
forms of payment:
(1) Lump sum
(2) Periodic payments. Periodic payments cannot be made over a period
longer than five years from your death, unless your beneficiary
is your surviving spouse. Periodic payments to your surviving
spouse may be made over a period not exceeding your surviving
spouse's life expectancy.
FORM OF PAYMENT TO BENEFICIARY OF RUBBERMAID PROFIT SHARING PLAN
PARTICIPANT
If you are a Rubbermaid Profit Sharing Plan participant and you die
before distribution of your account balance has begun, special rules
apply to the distribution of that part of your account that is
attributable to your participation in the Rubbermaid Profit Sharing
Plan.
You may select the form of payment to your beneficiary. A beneficiary
may only select the form of payment if you have not already done so.
In addition, if your beneficiary is your surviving spouse, your
surviving spouse will receive distribution of that part of your
account that is attributable to your participation in the Rubbermaid
Profit Sharing Plan in a single life annuity, unless he or she elects
one of the other available forms of payment.
WHO IS MY BENEFICIARY UNDER THE RUBBERMAID RETIREMENT PLAN?
You can designate your beneficiary under the Rubbermaid Retirement
Plan on the form provided by Fidelity. If you are married, your
beneficiary will automatically be your spouse, unless you designate
another beneficiary with your spouse's written consent. Your spouse's
consent must be witnessed by a Notary Public.
If you do not designate a beneficiary, or your designated beneficiary
dies before you do, your beneficiary under the Rubbermaid Retirement
Plan will be:
(1) your surviving spouse or, if none;
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(2) your surviving children or, if none;
(3) your surviving parents or, if none;
(4) your surviving brothers and sisters or, if none;
(5) your executors and administrators.
If your beneficiary dies after you, but before receiving distribution
of the full amount he or she is entitled to under the Rubbermaid
Retirement Plan, distribution will be made to your beneficiary's
estate, unless your beneficiary has designated another beneficiary to
receive benefits in that event.
SPECIAL PROVISIONS FOR DESIGNATING BENEFICIARY OF RUBBERMAID PROFIT
SHARING PLAN PARTICIPANT
If you are a Rubbermaid Profit Sharing Plan participant, are married,
and wish to designate a beneficiary other than your spouse to receive
distribution of that part of your account that is attributable to your
participation in the Rubbermaid Profit Sharing Plan, your spouse must
consent in writing to waive the single life annuity payable to him or
her if you die before distribution of your account begins. Your
spouse's consent must be witnessed by a notary public.
HOW DO I APPLY FOR BENEFITS?
When you become eligible for a benefit from the Rubbermaid Retirement
Plan, you may apply for your benefit in accordance with rules and
procedures prescribed by Rubbermaid. For information regarding the
applicable rules and procedures, please contact Fidelity.
ARE TAXES REQUIRED TO BE WITHHELD FROM MY DISTRIBUTION?
Generally, the Trustee is required to withhold Federal income tax from
all taxable distributions. The amount of withholding will be 20% of
the taxable amount distributed.
You may avoid having Federal income tax withheld from your
distribution only if the distribution is made to the trustee or
custodian of an Individual Retirement Account, or another qualified
defined contribution plan. You may elect to:
* Directly transfer all of the distributable amount to a trustee or
custodian of an Individual Retirement Account or another
qualified defined contribution plan.
* Directly transfer part of the distributable amount to a trustee
or custodian, and receive the balance of the distributable
amount. (Note: The amount you receive will be subject to
withholding.)
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If you do not elect one of the above options, the distributable amount
will be paid directly to you and Federal income tax equal to 20% of
the taxable amount of the distribution will be withheld from the
payment.
If you elect to receive a series of payments rather than a single lump
sum, the amounts paid to you may not be eligible for a direct
transfer. Amounts that are not eligible for direct transfer are also
not subject to the mandatory withholding requirement.
Additional specific information concerning required withholding and
direct transfers is available from Fidelity.
WHAT OTHER TAX RULES APPLY TO MY DISTRIBUTION?
If you receive a lump sum distribution from the Rubbermaid Retirement
Plan after reaching age 59-1/2, you may be eligible to make a one-time
election of five-year averaging. Under five-year averaging, you treat
the amount you receive in year one as having instead been received in
equal installments over a five-year period. You may only elect
five-year averaging if (1) you have been a participant in the
Rubbermaid Retirement Plan for five or more taxable years before the
taxable year in which the distribution is made, (2) you do not elect
to roll over any portion of the lump sum distribution, and (3) you
elect averaging treatment for all lump sum distributions that you
receive in that year. Your beneficiary can elect this special
averaging treatment regardless of your period of participation in the
Plan. Five-year averaging is not available for distributions of your
deductible associate voluntary contributions and distributions that
occur after 1999.
If you reached age 50 by January 1, 1986, you will be permitted to
make a one-time election between five-year averaging (at tax rates in
effect in the year of distribution) and ten-year averaging (at tax
rates in effect in 1986) and may elect capital gain treatment (at a
20% tax rate) for amounts attributable to participation in the Plan
prior to 1974.
If you receive a distribution or make a withdrawal before age 59-1/2,
a 10% additional income tax may apply to the taxable portion of the
distribution or withdrawal. The additional tax does not apply to
withdrawals or distributions (1) made because of your death,
disability, or separation from service after reaching age 55, (2) used
for payment of medical expenses to the extent deductible under Section
213 of the Code, (3) that are part of a scheduled series of
substantially equal periodic payments made not less frequently than
annually for your life expectancy, provided the payments begin after
you separate from service, or (4) made to an alternate payee pursuant
to a qualified domestic relations order.
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The rules governing taxation of qualified plan distributions are
complex. There are many financial considerations involved in deciding
whether to begin receiving benefits from the Rubbermaid Retirement
Plan and how to receive them. You should consult with a tax or
financial counselor familiar with your particular tax situation prior
to making your decision.
IS MY ACCOUNT SUBJECT TO CLAIMS OF CREDITORS?
As a general rule, creditors may not attach, garnish or otherwise
interfere with your account.
There is an exception, however, to this general rule. Rubbermaid may
be required by law to recognize obligations which result from court
ordered child support or alimony payments. Rubbermaid must honor a
qualified domestic relations order. A qualified domestic relations
order is defined as a decree or order issued by a court that obligates
you to pay child support or alimony, or otherwise allocates a portion
of assets in the Rubbermaid Retirement Plan to a spouse, former
spouse, child or other dependent. If a qualified domestic relations
order is received by Rubbermaid, all or a portion of your account may
be used to satisfy the obligation. Pursuant to the Rubbermaid
Retirement Plan Qualified Domestic Relations Order Procedures,
Rubbermaid shall determine the validity of any domestic relations
order which is received. You may obtain, without charge, a copy of
such procedures from the Plan Administrator.
ARE BENEFITS INSURED BY THE PBGC?
Benefits under the Rubbermaid Retirement Plan are not insured by the
Pension Benefit Guaranty Corporation (PBGC) since this is a defined
contribution plan. The PBGC only insures defined benefit pension
plans.
CAN I BORROW FROM THE RUBBERMAID RETIREMENT PLAN?
You may borrow against the vested part of your account under the
Rubbermaid Retirement Plan while you are employed by Rubbermaid or any
subsidiary or division of Rubbermaid, however, no loans will be made
to an employee who makes a rollover contribution to the Rubbermaid
Retirement Plan but who has not yet satisfied the eligibility
requirements under the Rubbermaid Retirement Plan. Plan loans are
made in accordance with rules and procedures prescribed by Rubbermaid.
For information regarding the applicable rules and procedures, please
contact Fidelity.
CAN I WITHDRAW MY ASSOCIATE VOLUNTARY CONTRIBUTIONS TO THE RUBBERMAID
RETIREMENT PLAN?
You may at any time withdraw the nondeductible associate voluntary
contributions you made to the Rubbermaid Retirement Plan before
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January 1, 1987, excluding any earnings credited to them while they
were held under the Rubbermaid Retirement Plan. Withdrawals must be
made in accordance with rules and regulations prescribed by
Rubbermaid. The minimum amount that you may withdraw is the lesser of
$100 or 100% of the nondeductible associate voluntary contributions,
excluding any earnings, remaining in your account under the Rubbermaid
Retirement Plan. For more information, please contact Fidelity.
CAN THE RUBBERMAID RETIREMENT PLAN BE TERMINATED?
The Rubbermaid Retirement Plan may be amended or discontinued by
Rubbermaid at any time, but no amendment may deprive you of any vested
interest in your account. On termination of the Rubbermaid Retirement
Plan or of contributions to it, the accounts of all affected
participants become fully vested. If the Rubbermaid Retirement Plan is
terminated, the accounts may or may not be paid out immediately. If
contributions are terminated, but the Rubbermaid Retirement Plan
continues, benefits are paid out when you otherwise become entitled to
them under the terms of the Rubbermaid Retirement Plan.
CAN I GET MORE INFORMATION ABOUT THE RUBBERMAID RETIREMENT PLAN?
This plan summary makes many general statements in order to give you a
basic understanding of your rights and how the Rubbermaid Retirement
Plan operates. It describes the principal provisions of the Rubbermaid
Retirement Plan. However, it must be understood by you that it is not
the complete Rubbermaid Retirement Plan.
In case any conflict arises between the provisions of the Rubbermaid
Retirement Plan and this description, the provisions of the Rubbermaid
Retirement Plan shall be controlling.
A complete copy of the Rubbermaid Retirement Plan is available for
inspection during regular business hours at the Rubbermaid Corporate
Benefits Department, 1147 Akron Road, Wooster, Ohio 44691-6000. If you
have any questions regarding the Rubbermaid Retirement Plan and its
administration, you may also contact the Rubbermaid Corporate Benefits
Department at (330) 264-6464.
WHO PAYS PLAN EXPENSES?
The costs of administering the Plan, including investment management,
legal, accounting and trustee and recordkeeping fees and similar
administrative expenses are generally paid out of Plan assets. The
Benefit Plans Committee makes the determination of which costs are
charged to the Plan and how those costs are allocated. They also may
make changes to how such costs are charged and allocated at any time
without notice to participants.
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HOW ARE PLAN EXPENSES PAID?
The following expenses are deducted from the appropriate fund in
proportion to the value of each participant's account balance:
(1) Investment management fees
(2) Annual loan maintenance fees (for loans initiated prior to
11/1/96)
(3) Annual zero balance account fees for newly eligible participants
(4) Rubbermaid Unitized Stock Fund administration fees*
(5) Stable Value Fund administration fees*
* EXPENSES ARE CHARGED TO THE ACCOUNT BALANCE OF ONLY THOSE
INVESTING IN THE FUND.
The following expenses are deducted in an equal dollar amount from
each participant's account balance:
(1) Fees to comply with government rules and regulations
(2) Annual participant recordkeeping fees
(3) Legal, accounting, actuarial and trustee fees
The following expenses are deducted directly from each participant's
account balance for those incurring the fees without reference to the
amount of the account balance:
(1) Minimum required distribution fees
(2) New loan set up fees
(3) Annual loan maintenance fee (for loans initiated after 11/1/96)
All Plan fees are subject to change without notice. Please refer to
the prospectus for each investment option offered in the Plan for more
specific information.
WHAT LAWS GOVERN THE RUBBERMAID RETIREMENT PLAN?
The Rubbermaid Retirement Plan and its related trust are subject to
the principal protective provisions of Titles I, II, and III of the
Employee Retirement Income Security Act ("ERISA") which apply to
defined contribution plans maintained by corporate employers.
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The Rubbermaid Retirement Plan and the trust are qualified under
Section 401(a) of the Internal Revenue Code, and the trust is exempt
from taxation under Section 501(a) of the Internal Revenue Code.
WHAT ARE MY ERISA PROTECTED RIGHTS?
As a participant in the Rubbermaid Retirement Plan you are entitled to
certain rights and protections under the Employee Retirement Income
Security Act of 1974 (ERISA). ERISA provides that all Plan
participants shall be entitled to:
* Examine, without charge, at the Plan Administrator's office and
at other specified locations, such as worksites, all documents
governing the Plan and a copy of the latest annual report (Form
5500 Series) filed by the Plan with the U.S. Department of Labor.
* Obtain, upon written request to the Plan Administrator, copies of
documents governing the operation of the Plan and copies of the
latest annual report (Form 5500 Series) and updated summary plan
description. The Plan Administrator may make a reasonable charge
for the copies.
* Obtain information as to whether a particular employer has
adopted the Plan and, if so, the employer's address, upon written
request addressed to the Plan Administrator.
* Receive a summary of the Plan's annual financial report. The
Plan Administrator is required by law to furnish each participant
with a copy of this summary annual report.
In addition to creating rights for Plan participants ERISA imposes
duties upon the people who are responsible for the operation of the
Plan. The people who operate the Plan, called "fiduciaries" of the
Plan, have a duty to do so prudently and in the interest of you and
other Plan participants and beneficiaries. No one, including your
employer or any other person, may fire you or otherwise discriminate
against you in any way to prevent you from obtaining a benefit or
exercising your rights under ERISA. If your claim for a benefit is
denied in whole or in part you must receive a written explanation of
the reason for the denial. You have the right to have the Plan review
and reconsider your claim. Under ERISA, there are steps you can take
to enforce the above rights. For instance, if you request materials
from the Plan and do not receive them within 30 days, you may file
suit in a Federal court. In such a case, the court may require the
Plan Administrator to provide the materials and pay you up to $110 a
day until you receive the materials, unless the materials were not
sent because of reasons beyond the control of the Plan Administrator.
If you have a claim for benefits which is denied or ignored, in whole
or in part, you may file suit in a state or Federal court. In
addition, if you disagree with the Plan's decision or lack thereof
concerning the qualified status of a domestic relations order or a
26
medical child support order, you may file suit in Federal court. If
it should happen that Plan fiduciaries misuse the Plan's money, or if
you are discriminated against for asserting your rights, you may seek
assistance from the U.S. Department of Labor, or you may file suit in
Federal court. The court will decide who should pay court costs and
legal fees. If you are successful the court may order the person you
have sued to pay these costs and fees. If you lose, the court may
order you to pay these costs and fees, for example, if it finds your
claim is frivolous.
If you have any questions about the Plan, you should contact the Plan
Administrator. If you have any questions about this statement or
about your rights under ERISA, you should contact the nearest office
of the Pension and Welfare Benefits Administration, U.S. Department of
Labor, listed in your telephone directory or the Division of Technical
Assistance and Inquiries, Pension and Welfare Benefits Administration,
U.S. Department of Labor, 200 Constitution Avenue N.W., Washington,
D.C. 20210.
HOW DO I APPEAL A DENIAL OF MY CLAIM FOR BENEFITS?
You do not have to make a formal claim in order to receive your
benefits under the Plan; most plan transactions are handled through
the Fidelity customer service telephone facilities. You may, however,
file a written claim for your benefits or rights under the Plan with
the Plan Administrator. The Plan Administrator shall render a
decision on your claim within 90 days of its receipt (or within 180
days of receipt in special circumstances of which you will be informed
in writing). If you disagree with a decision made by the Plan
Administrator regarding a claim under the Plan, you have the right to
ask the Plan Administrator for a review of its decision. You should
contact the Plan Administrator at its business address or at its
business phone number within 60 days of the date on which you receive
notice of denial of the claim. A request for review must contain the
following information:
(a) the date you received notice of denial of your claim and the date
your request for review is filed;
(b) the specific part of the claim you want reviewed;
(c) a statement setting forth the basis upon which you think the
decision should be reversed; and
(d) any written material that you think is pertinent to your claim
and that you want the Plan Administrator to examine.
Unless additional time is required, the Plan Administrator will review
the denial of your claim and notify you in writing of its decision,
within 60 days of the filing of your request.
27
ADDITIONAL INFORMATION
PLAN ADMINISTRATOR:
The Plan Administrator is:
Benefit Plans Committee, c/o Corporate Benefits
Department, Rubbermaid Incorporated,
1147 Akron Road, Wooster, OH 44691-6000
AGENT FOR SERVICE:
The agent for service of legal process is:
Rubbermaid Incorporated, 1147 Akron
Road, Wooster, OH 44691-6000,
Attention: General Counsel and Secretary
Service of legal process may also be made upon the Trustee or
Plan Administrator.
SPONSOR:
The Sponsor of the Rubbermaid Retirement Plan is:
Rubbermaid Incorporated, 1147 Akron
Road, Wooster, OH 44691-6000
EMPLOYER ID NUMBER:
The Sponsor's employer identification
number is: 34-0628700
PLAN NUMBER:
The plan number is: 001
RECORDKEEPER:
The Recordkeeper for the Rubbermaid Retirement Plan is:
Fidelity Institutional Retirement
Services Company, 200 Magellan Way,
Covington, KY 41015
TRUSTEE:
The Trustee with respect to Rubbermaid Retirement Plan assets is:
Fidelity Management Trust
Company, 82 Devonshire Street,
Boston, MA 02109
28
Appendix A -- Adopting Employers and Locations as of July 1, 1998
(1) Rubbermaid Commercial Products LLC
Winchester, Virginia
(2) Rubbermaid Incorporated
Wooster, Ohio
(3) Rubbermaid Texas Limited
Greenville, Texas
Cleburne, Texas
(4) Rubbermaid Commercial Products Inc
Cleveland, Tennessee
(5) Rubbermaid Specialty (Seasonal) Products Inc
Centerville, Iowa
Winfield, Kansas
(6) Rubbermaid Incorporated
Goodyear, Arizona
(7) The Little Tikes Company
Hudson, Ohio
Sebring, Ohio
City of Industry, California
Shippensburg, Pennsylvania
(8) Rubbermaid Cleaning Products Inc.
(formerly Empire Brushes, Inc.)
Greenville, North Carolina
(9) Rubbermaid Sales Corp.
Wooster, Ohio
Winchester, Virginia
Hudson, Ohio
Corning, New York
Jeffersonville, Ohio
Woodbridge, Virginia
Kenosha, Wisconsin
(10) Little Tikes Commercial Play Systems Inc.
(adopting employer effective 4/1/98)
Farmington, Missouri
(11) Graco Children's Products Inc.,
Century Products Division
(adopting employer effective 8/17/98)
Macedonia, Ohio
Massillon, Ohio
29
APPENDIX B -- SPECIAL RULES
The following rules apply to certain participants in the Rubbermaid
Retirement Plan. These rules apply notwithstanding any other
provisions of this summary to the contrary.
SPECIAL ELIGIBILITY RULES
If you were employed by Little Tikes Commercial Play Systems Inc. on
January 1, 1998 and you were in covered employment with Little Tikes
Commercial Play Systems Inc. on April 1, 1998, you became a
participant in the Rubbermaid Retirement Plan as of April 1, 1998.
If you were employed by Century Products Company on January 1, 1998
and you were in covered employment with Graco Children's Products
Inc., Century Products Division on August 17, 1998, you became a
participant in the Rubbermaid Retirement Plan as of August 17, 1998.
SPECIAL RULES RELATING TO THE ANNUAL RUBBERMAID CONTRIBUTION
The 1998 annual Rubbermaid contribution made on behalf of eligible
employees of Little Tikes Commercial Play Systems Inc. will be
determined based on such employees' eligible compensation for the
entire 1998 calendar year.
Associates employed by Rubbermaid Sales Corporation or Graco
Children's Products Inc., Century Products Division are not eligible
to receive a share of the annual Rubbermaid contribution under the
Rubbermaid Retirement Plan.
SPECIAL SERVICE CREDITING RULES
All "years of service," as defined on page 6, completed while employed
by Century Products Company prior to the acquisition of its assets by
Graco Children's Products Inc. will be credited to you for all
purposes under the Rubbermaid Retirement Plan if you were employed by
Century Products Company on June 16, 1998, the date its assets were
acquired by Graco Children's Products Inc.
SPECIAL DISTRIBUTION RULES
If you were a participant in the Rubbermaid Office Products 401(k)
Savings and Investment Plan, that part of your account that is
attributable to salary deferral contributions made under the
Rubbermaid Office Products Inc. 401(k) Savings and Investment Plan
that were transferred to the Rubbermaid Retirement Plan may be
withdrawn by you once you have attained age 59-1/2 even if you are
still employed by an adopting employer.
If you were a participant in the GOTT Corporation Employee Stock
Ownership Plan you may elect to receive distribution of all or a part
30
of your account that is attributable to your participation in the GOTT
Corporation Employee Stock Ownership Plan in the form of shares of
Rubbermaid Common Stock.
APPENDIX C -- RUBBERMAID UNITIZED STOCK FUND
The following documents filed by Rubbermaid with the Securities and
Exchange Commission (the "Commission") are incorporated by reference
into the Registration Statement on Form S-8 (the "Registration
Statement") filed with the Commission registering the Rubbermaid
common stock in which your contributions may be invested under the
Plan and the separate participation interests in the Plan and into
this summary plan description, designated portions of which constitute
part of a prospectus that meets the requirements of Section 10(a) of
the Securities Act (the "Prospectus") with respect to the Registration
Statement:
(1) The Plan's Annual Report on Form 11-K for the fiscal year ended
December 31, 1997.
(2) Rubbermaid's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(3) The description of the Rubbermaid common stock contained in
Rubbermaid's Registration Statement on Form 8-A filed with the
Commission on July 2, 1986.
(4) The description of the rights set forth in Rubbermaid's
Registration Statement on Form 8-A filed with the Commission on
June 27, 1996.
All documents subsequently filed by either Rubbermaid or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") prior to the
filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
then remaining unsold also are incorporated by reference into the
Registration Statement and the Prospectus from the date of filing of
such documents.
Rubbermaid will provide to each participant a copy of its annual
report to security holders for its latest fiscal year (or other
permitted document containing audited financial statements of
Rubbermaid) at the time documents containing the Plan information
required by Part I of Form S-8 are delivered to such participant.
Rubbermaid will also provide, without charge to any participant, upon
written or oral request: (i) a copy of any of the documents referred
to above that are incorporated into the Registration Statement and the
Prospectus (other than exhibits, unless the exhibits are specifically
incorporated by reference into the information incorporated into the
31
Registration Statement and Prospectus), and (ii) a copy of all
documents containing the information concerning the Plan required by
Part I of Form S-8 that constitute part of the Prospectus.
In addition, Rubbermaid will provide, without charge, to all employees
who participate in the Rubbermaid Unitized Stock Fund (and to any
other Plan participant who so requests, orally or in writing) copies
of all reports, proxy statements and other communications distributed
to shareholders of Rubbermaid generally.
Requests for any of the foregoing information should be directed to:
Investor Relations, Rubbermaid Incorporated, 1147 Akron Road, Wooster,
OH 44691, telephone number (330) 264-6464.
FEES
Participants investing in the Rubbermaid Unitized Stock Fund may incur
various fees which are deducted from participant accounts in the
following different ways:
(1) In proportion to the value of each participant's Rubbermaid
Unitized Stock Fund balance:
* Investment management fees
* Annual loan maintenance fees (for loans initiated prior to
11/01/96)
* Annual zero balance account fees for newly eligible
participants
* Proxy and fund administration fees
(2) In equal dollar amount from each participant's Rubbermaid
Unitized Stock Fund balance:
* Fees to comply with government rules and regulations
* Annual participant recordkeeping fees
* Legal, accounting, actuarial and trustee fees
(3) Directly from each participant's Rubbermaid Unitized Stock Fund
balance for those incurring the fees:
* Minimum required distribution fees
* New loan set up fees
* Annual loan maintenance fees (for loans initiated on or
after 11/01/96)
APPENDIX D -- SUMMARY OF FINANCIAL DATA FOR INVESTMENT FUNDS -- 1998
CHOOSING INVESTMENT FUNDS
Participants in the Plan may choose to have contributions to the Plan
and funds in their accounts invested in one or more of the following
investment funds:
32
(1) STABLE VALUE FUND: This is a stable value fund (not a mutual
fund), managed by PRIMCO Capital Management, Inc. It seeks to
provide for preservation of capital (amount invested) and
stability of investment returns. The fund assets can be invested
in a number of diversified, high quality investment contracts
with insurance companies, banks or other financial institutions.
Some of the investment contracts may be a general obligation of
the issuing insurance company, bank or financial institution.
Other investment contracts may be invested in specific fixed
income securities. Each contract has its own interest rate
(variable or fixed) and maturity date (generally not longer than
seven years). Although several new contracts are entered into
each year, fund participants earn the composite interest (blended
rate) from the portfolio of contracts held by the fund. Although
individual investment contracts are backed by the issuer, units
of this investment are not backed by PRIMCO, the Plan Sponsor, or
insured by the FDIC. Yield will vary.
(2) FIDELITY PURITAN FUND: Puritan Fund is a growth and income fund.
It seeks as much income as possible, consistent with preservation
of capital, by investing in a broadly diversified portfolio of
domestic and foreign common stocks, preferred stocks and bonds,
including lower quality, high yield debt securities. Dividend
amounts will vary. The Fund's share price and return will
fluctuate.
(3) SPARTAN U.S. EQUITY INDEX FUND: Spartan U.S. Equity Index Fund
is a growth and income fund. It seeks investment results that try
to duplicate the composition and total return of the S&P 500 and
in other securities that are based on the value of the Index.
The Fund's manager focuses on duplicating the performance and
composition of the Index versus a strategy of selecting
attractive stocks. The Fund's share price and return will
fluctuate.
(4) FIDELITY CONTRAFUND: Contrafund is a growth fund. It seeks
long-term capital appreciation by investing mainly in the
securities of companies believed to be out of favor or
undervalued. The fund invests in domestic and foreign common
stocks and stocks and securities convertible into common stock,
but it may purchase other securities that may produce capital
appreciation. Investing in undervalued or out of favor stocks can
lead to investments in small companies which are not well known.
The stock of small companies may be subject to more frequent and
greater price changes than other companies. The Fund's share
price and return will fluctuate.
(5) FIDELITY MAGELLAN FUND: Magellan Fund is a growth fund. It seeks
long-term capital appreciation by investing in the stocks of both
well known and lesser known companies with potentially above
average growth potential and a correspondingly higher level of
33
risk. Securities may be of foreign, domestic, and multinational
companies. The Fund's share price and return will fluctuate.
(6) FIDELITY SMALL CAP SELECTOR: Small Cap Selector is a growth
fund. It seeks capital appreciation by investing primarily in
companies that have market capitalizations of $750 million or
less at the time of the Fund's investment. Under normal
conditions at least 65% of the Fund's total assets will be
invested in the common or preferred stock of such companies. The
Fund may invest in all types of equity securities, including
common and preferred stock, and may invest a portion of its
assets in the stock of companies with larger market
capitalizations. Shares purchased on or after 11/15/97 held less
than 90 days will be subject to a 1.50% redemption fee. Share
price and return will fluctuate.
(7) FIDELITY DIVERSIFIED INTERNATIONAL FUND: Fidelity Diversified
International Fund is an international fund. It seeks capital
growth by investing primarily in equity securities of companies
located anywhere outside the U.S. that are included in the Morgan
Stanley EAFE Index. In selecting investments for the fund, the
manager relies on computer aided quantitative analysis supported
by fundamental research. The Fund seeks to generate more capital
growth than that of the EAFE Index. It is important to remember
that foreign investments pose greater risks and potential rewards
than U.S. investments. The risks include political and economic
uncertainties of foreign countries as well as the risk of
currency fluctuations. Share price and return will fluctuate.
(8) RUBBERMAID UNITIZED STOCK FUND: The Rubbermaid Unitized Stock
Fund invests primarily in Rubbermaid Common Stock. It is not a
mutual fund, nor is it a managed option. Its goal is to increase
the value of your investment through capital growth by investing
primarily in Rubbermaid Common Stock along with a small amount of
short-term investments to allow for exchanges or withdrawals
every business day. As with any stock, the value of your
investment may go up or down depending on how your company stock
performs in the market. Investing in a non-diversified, unmanaged
single stock inherently involves more investment risk than
investing in a diversified fund. Performance is directly tied to
the performance of the company as well as to that of the stock
market as a whole. Further information on unitization is set
forth below.
The following are additional fund choices that are available effective
October 1, 1998:
(9) FIDELITY U.S. BOND INDEX FUND. Fidelity U.S. Bond Index Fund is
an income mutual fund. Its goal is to provide investment results
that correspond to the aggregate price and investment performance
of the debt securities in the Lehman Brothers Aggregate Bond
34
Index. (The Lehman Brothers Aggregate Bond Index is an
unmanaged, market value weighted index of investment-grade,
fixed-rate debt issues, including government, corporate,
asset-backed, and mortgage-backed securities with maturities of
at least one year.) The Fund invests primarily in
investment-grade (medium to high quality) debt securities,
including U.S. Treasury and U.S. government securities, corporate
bonds, asset-backed and mortgage-backed securities, and U.S.
dollar-denominated foreign securities. The Fund's share price,
yield and return will vary.
(10) INVESCO DYNAMICS FUND. INVESCO Dynamics Fund is a mid-cap growth
mutual fund. It seeks long-term capital growth by investing in
domestic common stocks of companies traded on U.S. securities
exchanges as well as on the over-the-counter (OTC) market. The
Fund also has the flexibility to invest in other types of
securities, including preferred stocks and convertible
securities, and short-term instruments. The Fund may invest up
to 25% of its assets in foreign securities, which involve greater
risks. The Fund's share price and return will vary.
(11) FIDELITY EQUITY-INCOME FUND. Fidelity Equity-Income Fund is a
growth and income mutual fund. Its goal is to provide moderate
income while offering the potential for capital appreciation. It
seeks to provide a yield that exceeds the yield of the securities
in the S&P 500. The Fund focuses primarily on income-producing
stocks such as common and preferred stocks. The Fund may also
invest in bonds for income and generally avoids securities issued
by companies without proven earnings or credit. The Fund's share
price and return will vary.
The Trustee maintains separate accounts showing each type of
contribution and the interest of each participant in all of the eleven
investment funds. The Trustee revalues the investment funds and
allocates earnings and any increases or decreases in the value of each
fund to the participant's individual accounts daily. The allocation is
made in direct proportion to the relative size of each individual
participant's balance in a particular investment fund in relation to
the balances of all participants in that Fund. The Trustee has full
and exclusive powers of management and control over investment fund
assets of which it has custody and control. The Trustee and not the
participant has the right to vote the securities (other than
Rubbermaid Common Stock reflected in the Rubbermaid Unitized Stock
Fund) held in the investment funds and to exercise any other rights
with respect to such securities.
A participant's interest in the Rubbermaid Unitized Stock Fund is
accounted for in units, rather than on a per share basis. The value of
a unit reflects the combined market value of the underlying Rubbermaid
Common Stock and the market value of the short term cash position used
to meet the daily cash transaction needs of the Rubbermaid Unitized
35
Stock Fund. The market value of the Rubbermaid Common Stock portion of
the Rubbermaid Unitized Stock Fund is based on the closing price of
the Rubbermaid Common Stock on the New York Stock Exchange multiplied
by the total number of shares held in the Rubbermaid Unitized Stock
Fund. After determining the market value of the Rubbermaid Common
Stock portion of the Rubbermaid Unitized Stock Fund, the value of the
cash position is added and the total is divided by the number of
outstanding units to determine the daily unit value.
All contributions are invested and held by the Trustee in accordance
with the terms of the Plan and the trust maintained to hold assets of
the Plan. Income and proceeds from the sale of investments of each
investment fund are reinvested in that investment fund by the Trustee.
The Trustee or any applicable Investment Manager purchases the assets
of the investment funds on the open market except that the Trustee may
purchase Rubbermaid Common Stock from Rubbermaid in accordance with
the requirements of Section 408 of ERISA.
The Trustee may use a number of brokers to buy and sell securities for
the Plan. The selection of these brokers is based on an analysis of
the services they provide and the importance of these services in
aiding the investment function. Services include research on
economics, industries, and companies, including both fundamental and
technical information. These research services are used by the Trustee
to service all of its accounts, and not all of these services are used
in connection with Plan investments. Commissions paid to the brokers
are paid by the Trustee and are based on a uniform discount schedule
established by the Trustee.
RATES OF RETURN
A summary of the investment performance for each of the investment
funds is set forth below.
CUMULATIVE TOTAL RETURNS
FUND NAME PERIOD ENDING DECEMBER 31, 1998
--------- ----------------------------------------
3 MONTH 1 YEAR 3 YEAR
------- ------ ------
Stable Value Fund 1.52% 6.35% 20.42%
Spartan U.S. Equity Index Fund 21.38% 28.48% 109.79%
Fidelity Puritan Fund 12.71% 16.59% 64.27%
Fidelity Contrafund 23.73% 31.57% 97.32%
Fidelity Magellan Fund 27.22% 33.63% 88.93%
Fidelity Small Cap Selector Fund 14.07% -7.39% 33.91%
Fidelity Diversified International Fund 15.25% 14.39% 56.13%
Fidelity U.S. Bond Index Fund 0.37% 8.87% 23.30%
INVESCO Dynamics Fund 27.10% 23.64% 78.59%
Fidelity Equity-Income Fund 16.16% 12.52% 77.01%
Investment results reflect past performance and do not guarantee or
predict future results. Interests in the Stable Value Fund are not
deposits or other obligations issued, endorsed, or guaranteed by
36
Fidelity Management Trust Company or any of its affiliates. These
interests, and interests or shares in any other investment fund, are
not insured by the U.S. Government, the Federal Deposit Insurance
Corporation, or any other governmental agency.
The following information provides historical market price data for
the Rubbermaid Common Stock for the 5-year period ending on December
31, 1998 on the New York Stock Exchange:
QUARTER-END DATE HIGH LOW CLOSE
---------------- ---- --- -----
3/31/94 $ 27-3/4 $ 26-1/8 $ 27-1/4
6/30/94 $ 26-5/8 $ 26-1/8 $ 26-1/4
9/30/94 $ 26-3/4 $ 26-3/8 $ 26-5/8
12/30/94 $ 29-3/4 $ 25-3/8 $ 28-3/4
3/31/95 $ 34-1/4 $ 27-3/8 $ 33
6/30/95 $ 33-1/2 $ 25-3/4 $ 27-3/4
9/30/95 $ 30-3/4 $ 27 $ 27-5/8
12/31/95 $ 28-1/2 $ 24-3/4 $ 25-1/2
3/31/96 $ 30-3/8 $ 25-1/4 $ 28-3/8
6/30/96 $ 29-1/2 $ 26-5/8 $ 27-1/4
9/30/96 $ 24-5/8 $ 24-1/8 $ 24-1/2
12/31/96 $ 23 $ 22-5/8 $ 22 -5/8
3/31/97 $ 24-7/8 $ 21-5/8 $ 24-7/8
6/30/97 $ 30 $ 24 $ 29-3/4
9/30/97 $ 20-5/16 $ 24-3/4 $ 25-9/16
12/31/97 $ 26-1/2 $ 23-5/16 $ 24-13/16
QUARTER-END DATE HIGH LOW CLOSE
---------------- ---- --- -----
3/31/98 $ 29 $ 28-3/8 $ 28-1/2
6/30/98 $ 33-3/16 $ 32-3/8 $ 33
9/30/98 $ 20-1/4 $ 23-1/2 $ 23-15/16
12/31/98 $ 32-1/8 $ 31-1/16 $ 31-7/16
Each investment fund's return to individual participants will not
necessarily equal reported returns, because of the timing of
contributions and investments and the allocation of earnings, as well
as the diluting impact of cash or cash equivalents held by each fund
for distributions or withdrawals.
APPENDIX E -- STABLE VALUE FUND
INVESTMENT OBJECTIVE
The objective of this Fund is to seek preservation of capital, provide
a reasonably predictable return that moves gradually toward current
market interest rates while over time producing a return higher than
37
that offered by money market funds, maintain diversification across
all investment categories, and maintain adequate liquidity for
participant elections. The Fund is considered conservative because it
is designed to minimize the fluctuations in principal value that may
be experienced in stock and bond funds. The trade-off for the lower
risk of this investment is the potential for a lower return than that
earned in other options.
FUND DESCRIPTION
The Stable Value Fund assets consist of a number of investment
contracts with a diversified group of insurance companies, banks, and
other financial institutions. Each contract has its own specific
terms including interest rate and maturity date. The Fund invests
primarily in alternative investment contracts issued by insurance
companies or banks and backed by high grade fixed income assets. The
contract issuer provides a "wrap" of the underlying assets, which
assumes payment of benefits, if needed, at contract value (cost plus
interest). In some instances, the Plan will have title to the
underlying assets that are held in a custodial account. In others,
the assets may be held through ownership of units of a fund or trust,
or units of an insurance company's separate account. The crediting
rate of these investments is based on the returns of the underlying
assets, however, this return is spread over the life of the contract
so as to produce a stable overall return for the Fund. Additionally,
the Fund utilizes general account investment contracts issued by
insurance companies or banks that contract to return the invested
amount plus a rate of interest at a designated future date. The
quality of this promise is based on the financial condition of the
contract issuer.
PORTFOLIO QUALITY BY S&P RATINGS
RISK CONTROL
As the Fund seeks to preserve principal value, PRIMCO controls risk by
purchasing high quality, well diversified investments. Credit quality
is the foundation on which investment decisions for the portfolio are
based. All investments made for the Fund are rated AA- or better at
the time of purchase. The investments are not guaranteed by
Rubbermaid Incorporated, PRIMCO, nor guaranteed or insured by the U.S.
Government.
[GRAPH]
The credited rate of the Fund is the average yield of all investments
held in the Fund. As new investments are made and older investments
38
are replaced at maturity, the average credited rate may change. In
general, the credited rate will move toward current interest rates.
The magnitude of the change depends on current rates and the amount of
the portfolio being reinvested. Annual investment management fees and
certain other administrative fees are netted against the return of the
Fund.
RATING DEFINITION
AAA Superior financial security on an absolute and
relative basis. Capacity to meet policyholder
obligations is overwhelming under a variety of
economic and underwriting conditions.
AA+ Excellent financial security. Capacity to meet
AA policyholder obligations is strong under a variety
AA- of economic and underwriting conditions.
A+ Good financial security. Capacity to meet
A policyholder obligations is somewhat susceptible to adverse
economic and underwriting conditions.
* USING DEFINITIONS FROM STANDARD & POOR'S. OTHER RATINGS USE
SIMILAR DEFINITIONS.
PERFORMANCE DATA:
ANNUALIZED RETURN (12/31/98)
[GRAPH]
RETURNS FOR PERIOD ENDED 12/31/98
Total Return Annualized
------------ ----------
3 Month 1.53% 6.12%
1 Year 6.38% 6.38%
3 Year 20.57% 6.43%
5 Year 38.61% 6.75%
Since 2/28/90 95.14% 7.86%
Returns are net of investment management fees. Recordkeeping, trustee
and other administrative fees are not reflected in these returns.
INVESTOR TYPE
* Investors seeking minimal fluctuations in principal investment.
39
* Investors looking for a competitive market interest rate with
minimal overall risk.
* Investor willing to trade lower return potential for lower risk.
* Investors looking to balance the volatility of equity investments
by adding a Fund designed to preserve principal into their
portfolio allocation.
FUND MANAGER
PRIMCO Capital Management, Inc. was hired in 1990 as investment
manager for the Stable Value Fund. Founded in 1985, PRIMCO specializes
in managing stable value funds and currently has over $21 billion in
assets under management. PRIMCO is a registered investment advisor
located in Louisville, Kentucky with an office in Portland, Oregon.
PRIMCO is a wholly owned subsidiary of INVESCO, a member of the
AMVESCAP PLC (formerly INVESCO PLC) global investment management
organization. AMVESCAP PLC currently manages over $261 billion in
assets (foreign and domestic) for corporate, public and jointly
trusteed retirement plans, foundations, endowments, and a host of
other institutional clients.
FEES
Participants investing in the Stable Value Fund may incur various fees
which are deducted from participant accounts in the following
different ways:
(1) In proportion to the value of each participant's account balance:
* Investment management fees
* Annual loan maintenance fees (for loans initiated prior to
11/01/96)
* Annual zero balance account fees for newly eligible
participants
* Fund administration fees
(2) In equal dollar amount from each participant's account balance:
* Fees to comply with government rules and regulations
* Annual participant recordkeeping fees
* Legal, accounting, actuarial and trustee fees
(3) Directly from each participant's account balance for those
incurring the fees:
* New loan set up fees
* Annual loan maintenance fees (for loans initiated on or
after 11/01/96)
40
LIMITATION OF LIABILITY
Neither Newell, Rubbermaid, its agent (including Newell or Rubbermaid
if it is acting as such) in administering the Plan, nor the agent
shall be liable for any act done in good faith or for the good faith
omission to act in connection with the Plan. However, nothing
contained herein shall affect a Participant's right to bring a cause
of action based on alleged violations of federal securities laws.
USE OF PROCEEDS
Newell does not anticipate that it will realize any net proceeds from the
issuance of its common stock under the Plan.
PLAN OF DISTRIBUTION
The common stock being offered hereby is offered pursuant to the Plan,
the terms of which provide for the issuance of common stock in
connection with investment of participant and employer contributions
to the Plan.
DESCRIPTION OF COMMON SHARES
Newell's certificate of incorporation authorizes the issuance of
400,000,000 shares of Common Stock, of which 162,728,371 were issued and
outstanding on February 8, 1999. The description of the Common Stock is
incorporated by reference into this Prospectus. See "Incorporation of
Information by Reference" for information on how to obtain a copy of
this description.
EXPERTS
The consolidated financial statements of Newell set forth in Newell's
Annual Report on Form 10-K for the fiscal year ended December 31, 1998
have been audited by Arthur Andersen LLP, independent accountants, as
stated in their report dated January 27, 1999 included in the Form
10-K and incorporated by reference in this document. Those consolidated
financial statements have been incorporated by reference in this
document and in reliance upon Arthur Andersen LLP's report given
upon the authority of that firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered
hereby have been passed upon for Newell by Schiff Hardin & Waite,
Chicago, Illinois. Schiff Hardin & Waite has advised Newell that a
member of the firm participating in the representation of Newell owns
approximately 3,900 shares of Newell common stock.
41
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering are as
follows:
Registration fee under the Securities Act . . . . . . . $ 4,139
Legal fees and expenses . . . . . . . . . . . . . . . . $15,000
Accounting fees and expenses . . . . . . . . . . . . . . $ 5,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . $15,000
-------
Total . . . . . . . . . . . . . . . . . . $39,139
ITEM 15. 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. Newell's Charter contains a
provision which eliminates directors' personal liability as set forth
above.
The Charter and the Bylaws of Newell provide in effect that
Newell 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.
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.
42
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.
Newell has in effect insurance policies for general officers' and
directors' liability insurance covering all of Newell's officers and
directors. Newell also has entered into indemnification agreements
with each of its officers and 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 Newell'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
43
20, 1998 (the "Merger Agreement"), Newell 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. In addition, from
and after the Effective Time, directors and officers of Rubbermaid who
become directors or officers of Newell will be entitled to
indemnification under the Charter and the Bylaws of Newell, as the
same may be amended from time to time in accordance with their terms
and applicable law, and to all other indemnity rights and protections
as are afforded to other directors and officers of Newell.
Additionally, for six years after the Effective Time, Newell 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 Newell may substitute policies of Newell or its
subsidiaries containing terms with respect to coverage and amount no
less favorable to such directors or officers. Newell 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, Newell will be obligated to
obtain a policy with the best coverage available, in the reasonable
judgment of Newell's Board, for a cost up to but not exceeding such
amount.
For six years after the Effective Time, Newell 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 16. EXHIBITS.
The Exhibits filed herewith are set forth on the Exhibit Index
filed as part of this Registration Statement.
44
ITEM 17. UNDERTAKINGS.
(a) Newell hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(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 this Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering rang may be reflected
in the form of prospectus filed with the Commission
pursuant to Rule 242(b) if, in the aggregate, the
changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on form s-3,
form s-8 or form f-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by Newell pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
45
(b) Newell hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of
Newell's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15 (d) of the
Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of Newell pursuant to the foregoing provisions, or otherwise,
Newell has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by Newell of expenses incurred or paid by a director, officer
or controlling person of Newell 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,
Newell will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all the requirements for filing on Form S-3
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 24th day of March, 1999.
NEWELL CO.
(Registrant)
By: /s/ William T. Alldredge
------------------------------
William T. Alldredge
Vice President - Finance
46
Each person whose signature appears below appoints, Dale L.
Matschullat, John J. McDonough and William T. Alldredge or any one
of them, as such person's true and lawful attorneys to execute in
the name of each such person, and to file, any amendments to this
Registration Statement that either of such attorneys shall deem
necessary or advisable to enable the Registrant to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission with respect
thereto, in connection with this Registration Statement, which amend-
ments may make such changes in such Registration Statement as either
of the above-named attorneys deems appropriate, and to comply with
the undertakings of the Registrant made in connection with this
Registration Statement; and each of the undersigned hereby ratifies
all that either of said attorneys shall do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the follow-
ing persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ John J. McDonough Chief March 24, 1999
------------------------------- Executive Officer (Principal
John J. McDonough Executive Officer) and Director
/s/ Thomas A. Ferguson, Jr. President and Chief March 24, 1999
------------------------------- Operating Officer and Director
Thomas A. Ferguson, Jr.
/s/ Donald L. Krause Senior Vice President - Corporate March 24, 1999
------------------------------- Controller (Principal Accounting
Donald L. Krause Officer)
/s/ William T. Alldredge Vice President - Finance March 24, 1999
------------------------------- (Principal Financial Officer)
William T. Alldredge
/s/ William P. Sovey Chairman of the Board of March 24, 1999
------------------------------- Directors
William P. Sovey
/s/ Alton F. Doody Director March 24, 1999
-------------------------------
Alton F. Doody
47
/s/ Daniel C. Ferguson Director March 24, 1999
-------------------------------
Daniel C. Ferguson
/s/ Robert L. Katz Director March 24, 1999
-------------------------------
Robert L. Katz
/s/ Elizabeth Cuthbert Millett Director March 24, 1999
----------------------------------
Elizabeth Cuthbert Millett
/s/ Cynthia A. Montgomery Director March 24, 1999
--------------------------------
Cynthia A. Montgomery
/s/ Allan P. Newell Director March 24, 1999
--------------------------------
Allan P. Newell
48
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------ -------
2* Agreement and Plan of Merger dated as of
October 20, 1998, among Newell, Rubbermaid
and Rooster Company (incorporated by
reference to Annex A to the joint proxy
statement/prospectus contained in Newell's
Registration Statement on Form S-4 (File No.
333-71747) effective February 4, 1999.
4.1 Rubbermaid Retirement Plan.
4.2* 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 Opinion of Schiff Hardin & Waite.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Schiff Hardin & Waite (included
in its opinion filed as Exhibit 5 in this
Registration Statement).
24 Power of Attorney (set forth on the
signature page).
-------------------
* Previously filed.
49
EXHIBIT 4.1
-----------
RUBBERMAID RETIREMENT PLAN
(January 1, 1998 Restatement)
TABLE OF CONTENTS
PREAMBLE
ARTICLE I
DEFINITIONS
1.1 PLAN DEFINITIONS . . . . . . . . . . . . . . . . . 1
1.2 INTERPRETATION . . . . . . . . . . . . . . . . . . 7
1.3 SCHEDULES . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
VESTING SERVICE
2.1 CREDITING OF HOURS OF SERVICE . . . . . . . . . . . 7
2.2 HOURS OF SERVICE EQUIVALENCIES . . . . . . . . . . 9
2.3 LIMITATIONS ON CREDITING OF HOURS OF SERVICE . . . 9
2.4 DEPARTMENT OF LABOR RULES . . . . . . . . . . . . . 10
2.5 YEARS OF VESTING SERVICE . . . . . . . . . . . . . 10
ARTICLE III
ELIGIBILITY
3.1 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . 11
3.2 TRANSFERS OF EMPLOYMENT . . . . . . . . . . . . . . 11
3.3 RE-EMPLOYMENT . . . . . . . . . . . . . . . . . . . 11
3.4 NOTIFICATION CONCERNING NEW ELIGIBLE EMPLOYEES . . 11
3.5 EFFECT AND DURATION . . . . . . . . . . . . . . . . 11
ARTICLE IV
SALARY DEFERRAL CONTRIBUTIONS
4.1 SALARY DEFERRAL CONTRIBUTIONS . . . . . . . . . . . 12
4.2 AMOUNT OF SALARY DEFERRAL CONTRIBUTIONS . . . . . . 12
4.3 CHANGES IN SALARY DEFERRAL AUTHORIZATION . . . . . 13
4.4 SUSPENSION OF SALARY DEFERRAL CONTRIBUTIONS . . . . 13
4.5 RESUMPTION OF SALARY DEFERRAL CONTRIBUTIONS . . . . 13
4.6 DELIVERY OF SALARY DEFERRAL CONTRIBUTIONS . . . . . 14
4.7 VESTING OF SALARY DEFERRAL CONTRIBUTIONS . . . . . 14
ARTICLE V
EMPLOYEE AND ROLLOVER CONTRIBUTIONS
5.1 DISCONTINUATION OF EMPLOYEE CONTRIBUTIONS . . . . . 14
5.2 ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . 14
5.3 VESTING OF EMPLOYEE CONTRIBUTIONS AND ROLLOVER
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . 15
(i)
ARTICLE VI
EMPLOYER REGULAR CONTRIBUTIONS
6.1 CONTRIBUTION PERIOD . . . . . . . . . . . . . . . . 15
6.2 AMOUNT AND ALLOCATION OF EMPLOYER REGULAR
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . 15
6.4 VERIFICATION OF AMOUNT OF EMPLOYER REGULAR
CONTRIBUTIONS AND EMPLOYER MATCHING CONTRIBUTIONS
BY THE SPONSOR . . . . . . . . . . . . . . . . . . 16
6.5 PAYMENT OF EMPLOYER REGULAR CONTRIBUTIONS AND
EMPLOYER MATCHING CONTRIBUTIONS . . . . . . . . . . 16
6.6 ELIGIBILITY TO PARTICIPATE IN ALLOCATION . . . . . 16
6.7 VESTING OF EMPLOYER REGULAR CONTRIBUTIONS . . . . . 17
6.8 ELECTION OF FORMER VESTING SCHEDULE . . . . . . . . 18
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . 19
7.2 CODE SECTION 402(G) LIMIT . . . . . . . . . . . . . 22
7.3 DISTRIBUTION OF EXCESS DEFERRALS . . . . . . . . . 22
7.4 LIMITATION ON SALARY DEFERRAL CONTRIBUTIONS OF
HIGHLY COMPENSATED EMPLOYEES . . . . . . . . . . . 23
7.5 DISTRIBUTION OF EXCESS SALARY DEFERRAL
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . 25
7.9 DETERMINATION OF INCOME OR LOSS . . . . . . . . . . 27
7.10 CODE SECTION 415 LIMITATIONS ON CREDITING OF
CONTRIBUTIONS AND FORFEITURES . . . . . . . . . . . 28
7.11 COVERAGE UNDER OTHER QUALIFIED DEFINED
CONTRIBUTION PLAN . . . . . . . . . . . . . . . . . 29
7.12 COVERAGE UNDER QUALIFIED DEFINED BENEFIT PLAN . . . 29
7.13 SCOPE OF LIMITATIONS . . . . . . . . . . . . . . . 30
ARTICLE VIII
TRUST FUNDS AND ACCOUNTS
8.1 GENERAL FUND . . . . . . . . . . . . . . . . . . . 30
8.2 INVESTMENT FUNDS . . . . . . . . . . . . . . . . . 30
8.3 LOAN INVESTMENT FUND . . . . . . . . . . . . . . . 31
8.4 INCOME ON TRUST . . . . . . . . . . . . . . . . . . 31
8.5 ACCOUNTS . . . . . . . . . . . . . . . . . . . . . 31
8.6 SUB-ACCOUNTS . . . . . . . . . . . . . . . . . . . 31
ARTICLE IX
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
9.1 FUTURE CONTRIBUTIONS INVESTMENT ELECTIONS . . . . . 32
9.2 DEPOSIT OF CONTRIBUTIONS . . . . . . . . . . . . . 32
9.3 ELECTION TO TRANSFER BETWEEN FUNDS . . . . . . . . 32
(ii)
9.4 404(C) PLAN . . . . . . . . . . . . . . . . . . . . 32
ARTICLE X
CREDITING AND VALUING ACCOUNTS
10.1 CREDITING ACCOUNTS . . . . . . . . . . . . . . . . 33
10.2 VALUING ACCOUNTS . . . . . . . . . . . . . . . . . 33
10.3 PLAN VALUATION PROCEDURES . . . . . . . . . . . . . 33
10.4 FINALITY OF DETERMINATIONS . . . . . . . . . . . . 34
10.5 NOTIFICATION . . . . . . . . . . . . . . . . . . . 34
ARTICLE XI
LOANS
11.1 APPLICATION FOR LOAN . . . . . . . . . . . . . . . 34
11.2 REDUCTION OF ACCOUNT UPON DISTRIBUTION . . . . . . 35
11.3 REQUIREMENTS TO PREVENT A TAXABLE DISTRIBUTION . . 35
11.4 ADMINISTRATION OF LOAN INVESTMENT FUND . . . . . . 36
11.5 DEFAULT . . . . . . . . . . . . . . . . . . . . . . 37
11.6 LOANS GRANTED PRIOR TO AMENDMENT . . . . . . . . . 37
ARTICLE XII
WITHDRAWALS WHILE EMPLOYED
12.1 WITHDRAWALS OF EMPLOYEE CONTRIBUTIONS-NON-
DEDUCTIBLE . . . . . . . . . . . . . . . . . . . . 37
12.3 LIMITATIONS ON WITHDRAWALS . . . . . . . . . . . . 38
12.4 ORDER OF WITHDRAWAL FROM A PARTICIPANT'S SUB-
ACCOUNTS . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE XIII
TREATMENT OF NON-VESTED AMOUNTS
FOLLOWING TERMINATION DATE
13.1 NOTICE OF TERMINATION DATE . . . . . . . . . . . . 38
13.2 SEPARATE ACCOUNTING FOR NON-VESTED AMOUNTS . . . . 38
13.3 DISPOSITION OF NON-VESTED AMOUNTS . . . . . . . . . 39
13.4 RECREDITING OF FORFEITED AMOUNTS . . . . . . . . . 39
ARTICLE XIV
DISTRIBUTIONS
14.1 DISTRIBUTIONS TO PARTICIPANTS . . . . . . . . . . . 40
14.2 DISTRIBUTIONS TO BENEFICIARIES . . . . . . . . . . 40
14.3 CASH OUTS AND PARTICIPANT CONSENT . . . . . . . . . 41
14.4 REQUIRED COMMENCEMENT OF DISTRIBUTION . . . . . . . 42
14.5 RE-EMPLOYMENT OF A PARTICIPANT . . . . . . . . . . 42
14.6 RESTRICTIONS ON ALIENATION . . . . . . . . . . . . 43
14.7 FACILITY OF PAYMENT . . . . . . . . . . . . . . . . 43
(iii)
14.8 INABILITY TO LOCATE PAYEE . . . . . . . . . . . . . 43
14.9 DISTRIBUTION PURSUANT TO QUALIFIED DOMESTIC
RELATIONS ORDERS . . . . . . . . . . . . . . . . . 44
ARTICLE XV
FORM OF PAYMENT
15.1 APPLICABILITY . . . . . . . . . . . . . . . . . . . 44
15.2 NORMAL FORM OF PAYMENT . . . . . . . . . . . . . . 44
15.3 OPTIONAL FORM OF PAYMENT . . . . . . . . . . . . . 44
15.4 CHANGE OF OPTION ELECTION . . . . . . . . . . . . . 45
15.5 Direct Rollover . . . . . . . . . . . . . . . . . . 45
15.6 NOTICE REGARDING FORMS OF PAYMENT . . . . . . . . . 46
15.7 RE-EMPLOYMENT . . . . . . . . . . . . . . . . . . . 46
15.8 SECTION 242(b)(2) ELECTIONS . . . . . . . . . . . . 46
ARTICLE XVI
BENEFICIARIES
16.1 APPLICABILITY . . . . . . . . . . . . . . . . . . . 48
16.2 DESIGNATION OF BENEFICIARY . . . . . . . . . . . . 48
16.3 SPOUSAL CONSENT REQUIREMENTS . . . . . . . . . . . 48
ARTICLE XVII
ADMINISTRATION
17.1 AUTHORITY OF THE SPONSOR . . . . . . . . . . . . . 49
17.2 ACTION OF THE SPONSOR . . . . . . . . . . . . . . . 49
17.3 CLAIMS REVIEW PROCEDURE . . . . . . . . . . . . . . 50
17.4 QUALIFIED DOMESTIC RELATIONS ORDERS . . . . . . . . 51
17.5 INDEMNIFICATION . . . . . . . . . . . . . . . . . . 51
17.6 ACTIONS BINDING . . . . . . . . . . . . . . . . . . 51
ARTICLE XVIII
AMENDMENT AND TERMINATION
18.1 AMENDMENT . . . . . . . . . . . . . . . . . . . . . 52
18.2 LIMITATION ON AMENDMENT . . . . . . . . . . . . . . 52
18.3 TERMINATION . . . . . . . . . . . . . . . . . . . . 52
18.4 REORGANIZATION . . . . . . . . . . . . . . . . . . 54
18.5 WITHDRAWAL OF AN EMPLOYER . . . . . . . . . . . . . 54
ARTICLE XIX
ADOPTION BY OTHER ENTITIES
19.1 ADOPTION BY RELATED COMPANIES . . . . . . . . . . . 55
19.2 EXTENSION OF COVERAGE . . . . . . . . . . . . . . . 55
19.3 EFFECTIVE PLAN PROVISIONS . . . . . . . . . . . . . 55
(iv)
ARTICLE XX
MISCELLANEOUS PROVISIONS
20.1 NO COMMITMENT AS TO EMPLOYMENT . . . . . . . . . . 56
20.2 BENEFITS . . . . . . . . . . . . . . . . . . . . . 56
20.3 NO GUARANTEES . . . . . . . . . . . . . . . . . . . 56
20.4 EXPENSES . . . . . . . . . . . . . . . . . . . . . 56
20.5 PRECEDENT . . . . . . . . . . . . . . . . . . . . . 56
20.6 DUTY TO FURNISH INFORMATION . . . . . . . . . . . . 56
20.7 WITHHOLDING . . . . . . . . . . . . . . . . . . . . 57
20.8 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN
ASSETS . . . . . . . . . . . . . . . . . . . . . . 57
20.9 BACK PAY AWARDS . . . . . . . . . . . . . . . . . . 57
20.10 MILITARY LEAVE . . . . . . . . . . . . . . . . . . 58
20.11 CONDITION ON EMPLOYER REGULAR CONTRIBUTIONS . . . . 58
20.12 RETURN OF CONTRIBUTIONS TO AN EMPLOYER . . . . . . 58
20.13 VALIDITY OF PLAN . . . . . . . . . . . . . . . . . 58
20.14 TRUST AGREEMENT . . . . . . . . . . . . . . . . . . 58
20.15 PARTIES BOUND . . . . . . . . . . . . . . . . . . . 59
20.16 APPLICATION OF CERTAIN PLAN PROVISIONS . . . . . . 59
20.17 LEASED EMPLOYEES . . . . . . . . . . . . . . . . . 59
20.18 TRANSFERRED FUNDS . . . . . . . . . . . . . . . . . 60
ARTICLE XXI
TOP-HEAVY PROVISIONS
21.1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . 60
21.2 APPLICABILITY . . . . . . . . . . . . . . . . . . . 62
21.3 MINIMUM EMPLOYER REGULAR CONTRIBUTION . . . . . . . 63
21.4 ADJUSTMENTS TO SECTION 415 LIMITATIONS . . . . . . 63
21.5 ACCELERATED VESTING . . . . . . . . . . . . . . . . 64
ARTICLE XXII
EFFECTIVE DATE
22.1 EFFECTIVE DATE OF AMENDMENT AND RESTATEMENT . . . . 64
ADDENDUM A
(v)
PREAMBLE
The Rubbermaid Retirement Plan (the "Plan"), originally effective as
of September 30, 1944, is hereby amended and restated in its entirety.
The Plan, as amended and restated hereby, is intended to qualify as a
profit-sharing plan under Section 401(a) of the Code, and includes a
cash or deferred arrangement that is intended to qualify under Section
401(k) of the Code. The Plan is maintained for the exclusive benefit
of eligible employees and their beneficiaries.
Notwithstanding any other provision of the Plan to the contrary, a
Participant's vested interest in his Account under the Plan on and
after the effective date of this amendment and restatement shall not
be less than his vested interest in his account on the day immediately
preceding the effective date.
ARTICLE I
DEFINITIONS
1.1 PLAN DEFINITIONS
As used herein, the following words and phrases have the meanings
hereinafter set forth, unless a different meaning is plainly required
by the context:
An "Account" means the account maintained by the Trustee in the name
of a Participant that reflects his interest in the Trust and any
Sub-Accounts maintained thereunder, as provided in Article VIII.
The "Administrator" means the Sponsor unless the Sponsor designates
another person or persons to act as such. Beginning August 1, 1995,
the Sponsor designates the Benefit Plans Committee as Administrator.
The "Beneficiary" of a Participant means the person or persons
entitled under the provisions of the Plan to receive distribution
hereunder in the event the Participant dies before receiving
distribution of his entire interest under the Plan.
A "Break in Service" means any Plan Year during which the person
completes less than 501 Hours of Service.
The "Code" means the Internal Revenue Code of 1986, as amended from
time to time. Reference to a section of the Code includes such
section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
1
The "Compensation" of a Participant for purposes of (i) determining
the amount and allocation of Employer Regular Contributions for any
period and (ii) for purposes of determining the amount of a
Participant's Salary Deferral Contributions and the amount and
allocation of Employer Matching Contributions, for any period
beginning on or after April 1, 1998, means: regular or basic salary
and wages, overtime pay and other earnings that are paid as a
substitute for base pay or a modification to base pay as determined by
the Administrator including, but not limited to, double-time, shift
premium, shift premium overtime, shift premium double-time, vacation
pay, holiday pay, supervisor overtime, jury duty pay, funeral pay,
meeting pay, retroactive pay and incentive pay paid to the Participant
by his Employer for employment as an Eligible Employee during such
period, as determined prior to any exclusions for Salary Deferral
Contributions hereunder or contributions to a plan specified under
Section 125 of the Code.
The "Compensation" of a Participant for any period prior to April 1,
1998, for purposes of determining the amount of a Participant's Salary
Deferral Contributions means regular or basic salary and wages paid to
the Participant by his Employer for employment as an Employee during
such period, as determined prior to any exclusions for Salary Deferral
Contributions hereunder or contributions to a plan specified under
Section 125 of the Code.
For purposes of determining the amount and allocation of Employer
Regular Contributions, except as otherwise determined by the
Administrator to prevent duplication of benefits under the Plan and
any other plan maintained by an Employer or a Related Company, if an
employee transfers directly either (i) from employment with an
Employer or with a Related Company in a capacity other than as an
Employee to employment as an Employee or (ii) from employment with one
Employer as an Employee to employment with another Employer as an
Employee, amounts paid to such Employee by the Related Company or
Employer for the Contribution Period prior to the transfer shall be
treated as having been paid by the Employer by which he is employed on
the last day of the Contribution Period for employment as an Employee.
In no event, however, shall the Compensation of a Participant taken
into account under the Plan for any Plan Year exceed $160,000 (subject
to adjustment annually as provided in Section 401(a)(17)(B) and
Section 415(d) of the Code). If the Compensation of a Participant is
determined over a period of time that contains fewer than 12 calendar
months, then the annual compensation limitation described above shall
be adjusted with respect to that Participant by multiplying the annual
compensation limitation in effect for the Plan Year by a fraction the
numerator of which is the number of full months in the period and the
denominator of which is 12; provided, however, that no proration is
required for a Participant who is covered under the Plan for less than
2
one full Plan Year if the formula for allocations is based on
Compensation for a period of at least 12 months.
A "Contribution Period" means the period specified in Article VI for
which Employer Regular Contributions shall be made.
"Disabled" or "Disability" means a physical or mental condition
arising after an Employee has become an Eligible Employee which
totally and permanently prevents the Participant from engaging in any
occupation or employment for remuneration or profit for his Employer
or a Related Company, except for purposes of rehabilitation not
incompatible with a finding of total and permanent disability. The
Administrator shall determine Disability hereunder on the basis of the
certificate of a physician acceptable to it and evidence that the
Employee is eligible for either (1) waiver of the premium under any
long term group life insurance plan sponsored by his Employer, but
administered by a third party or (2) disability benefits under the
terms of the Social Security Act.
An "Eligible Employee" means any Employee who has met the eligibility
requirements of Article III to have Salary Deferral Contributions made
to the Plan on his behalf.
An "Employee" means any employee of an Employer at a plant, division,
or other business operation to which coverage has been extended, as
described in Schedule I, other than an employee who is covered by a
collective bargaining agreement or is a non-resident alien.
An "Employee Contribution" means any after-tax employee contribution
made by a Participant prior to January 1, 1987, including both
Employee Contributions-Deductible and Employee Contributions-Non-
Deductible.
An "Employee Contribution-Deductible" means any after-tax employee
contribution made by a Participant prior to January 1, 1987, for which
a deduction was allowable under Section 219(a) of the Code for the
taxable year in which the contribution was made.
An "Employee Contribution-Non-Deductible" means any after-tax employee
contribution made by a Participant other than an Employee
Contribution-Deductible.
An "Employer" means the Sponsor and any entity which has adopted the
Plan as provided in Article XIX, as described in Schedule I.
An "Employer Matching Contribution" means any contributions made to
the Plan on or after April 1, 1998, on account of a Participant's
Salary Deferral Contributions as provided in Article VI.
3
An "Employer Regular Contribution" means the amount, if any, that an
Employer contributes to the Plan as provided in Article VI and Article
XXI.
An "Enrollment Date" means each January 1.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a section of ERISA includes
such section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
The "General Fund" means a Trust Fund maintained by the Trustee as
required to hold and administer any assets of the Trust that are not
allocated among any separate Investment Funds as may be provided in
the Plan or the Trust Agreement. No General Fund shall be maintained
if all assets of the Trust are allocated among separate Investment
Funds.
A "Highly Compensated Employee" means an Employee or former Employee
who is a highly compensated active employee or a highly compensated
former employee as defined hereunder.
A "highly compensated active employee" includes any Employee who
performs services for an Employer during the Plan Year and who (i) was
a five percent owner at any time during the Plan Year or the look back
year or (ii) received compensation from an Employer during the look
back year in excess of $80,000 (subject to adjustment annually at the
same time and in the same manner as under Section 415(d) of the Code)
and was in the top paid group of employees for the look back year. An
Employee is in the top paid group of employees if he is in the top 20
percent of the employees of his Employer and all Related Companies
when ranked on the basis of compensation paid during the look back
year.
A "highly compensated former employee" includes any Employee who (1)
separated from service from an Employer and all Related Companies (or
is deemed to have separated from service from an Employer and all
Related Companies) prior to the Plan Year, (2) performed no services
for an Employer during the Plan Year, and (3) for either the
separation year or any Plan Year ending on or after the date the
Employee attains age 55, was a highly compensated active employee, as
determined under the rules in effect under Section 414(q) of the Code
for such year.
The determination of who is a Highly Compensated Employee hereunder,
including, if applicable, determinations as to the number and identity
of employees in the top paid group, shall be made in accordance with
the provisions of Section 414(q) of the Code and regulations issued
thereunder.
4
For purposes of this definition, the following terms have the
following meanings:
(a) An employee's "compensation" means compensation as defined in
Section 415(c)(3) of the Code and regulations issued
thereunder.
(b) The "look back year" means the 12-month period immediately
preceding the Plan Year.
An "Hour of Service" with respect to a person means each hour, if any,
that is credited to him in accordance with the provisions of
Article II.
An "Investment Fund" means any separate investment Trust Fund
maintained by the Trustee as provided in the Plan or the Trust
Agreement or any separate investment fund maintained by the Trustee,
to the extent that there are Participant Sub-Accounts under such
funds, to which assets of the Trust may be allocated and separately
invested.
"Military Leave" means an employee's absence from work because of
service with the armed forces of the United States provided he is
eligible for re-employment rights under the Uniformed Services
Employment and Re-employment Rights Act of 1994, and returns to work
with an Employer or a Related Company within the period during which
he retains such re-employment rights.
The "Normal Retirement Date" of an employee means the date he attains
age 65.
A "Participant" means any person who has an Account in the Trust.
The "Plan" means the Rubbermaid Retirement Plan, as from time to time
in effect.
A "Plan Year" means the 12-consecutive-month period ending each
December 31.
A "Predecessor Employer" means any organization, the stock or assets
of which were acquired by an Employer or a Related Company; provided,
however, that an organization shall be treated as a Predecessor
Employer with respect only to those employees who were employed by the
Predecessor Employer as of the date of acquisition.
A "Related Company" means any corporation or business, other than an
Employer, which would be aggregated with an Employer for a relevant
purpose under Section 414 of the Code.
5
A "Rollover Contribution" means any rollover contribution to the Plan
made by a Participant as provided in Article V.
A "Salary Deferral Contribution" means the amount contributed to the
Plan on a Participant's behalf by his Employer in accordance with his
salary deferral authorization executed pursuant to Article IV.
The "Sponsor" means Rubbermaid Incorporated, and any successor
thereto.
A "Sub-Account" means any of the individual sub-accounts of a
Participant's Account that is maintained as provided in Article VIII.
The "Termination Date" of a Participant means the date on which a
Participant terminates employment with an Employer and all Related
Companies because of death, Disability, retirement, or other
termination of employment
The "Trust" means the trust maintained by the Trustee under the Trust
Agreement.
The "Trust Agreement" means the agreement entered into between the
Sponsor and the Trustee relating to the holding, investment, and
reinvestment of the assets of the Plan, together with all amendments
thereto.
The "Trustee" means the trustee or any successor trustee which at the
time shall be designated, qualified, and acting under the Trust
Agreement. The Sponsor may designate a person or persons other than
the Trustee to perform any responsibility of the Trustee under the
Plan, other than trustee responsibilities as defined in Section
405(c)(3) of ERISA, and the Trustee shall not be liable for the
performance of such person in carrying out such responsibility except
as otherwise provided by ERISA. The term Trustee shall include any
delegate of the Trustee as may be provided in the Trust Agreement.
A "Trust Fund" means any fund maintained under the Trust by the
Trustee.
A "Valuation Date" means the date or dates designated by the Sponsor
and communicated in writing to the Trustee for the purpose of valuing
the General Fund and each Investment Fund and adjusting Accounts and
Sub-Accounts hereunder, which dates need not be uniform with respect
to the General Fund, each Investment Fund, Account, or Sub-Account;
provided, however, that the General Fund and each Investment Fund
shall be valued and each Account and Sub-Account shall be adjusted no
less often than once annually.
6
The "Vesting Service" of an employee means the period or periods of
service credited to him under the provisions of Article II for
purposes of determining his vested interest in his Employer Regular
Contributions Sub-Account.
1.2 INTERPRETATION
Where required by the context, the noun, verb, adjective, and adverb
forms of each defined term shall include any of its other forms.
Wherever used herein, the masculine pronoun shall include the
feminine, the singular shall include the plural, and the plural shall
include the singular.
1.3 SCHEDULES
The provisions of the Plan may be expanded, modified, or supplemented
by schedules to the Plan. Any such schedule shall form a part of the
Plan as of the effective date of the schedule.
ARTICLE II
VESTING SERVICE
2.1 CREDITING OF HOURS OF SERVICE
A person shall be credited with an Hour of Service for:
(a) each hour for which he is paid, or entitled to payment, for the
performance of duties for an Employer or a Related Company
during the applicable computation period; provided, however,
that hours compensated at a premium rate shall be treated as
straight-time hours;
(b) subject to the provisions of Section 2.3, each hour for which
he is paid, or entitled to payment, by an Employer or a Related
Company on account of a period of time during which no duties
are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), lay-off, jury duty, military
duty, or leave of absence approved by the Administrator;
(c) each hour for which he is not paid or entitled to payment, but
for which he would have been scheduled to work for an Employer
or a Related Company during the period of time that he is
absent from work while on leave of absence approved by the
Administrator;
7
(d) each hour for which he is not paid or entitled to payment, but
for which he would have been scheduled to work for an Employer
or a Related Company during the period of time that he is
absent from work while on Military Leave;
(e) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer or a
Related Company; provided, however, that the same Hour of
Service shall not be credited both under paragraph (a) or (b)
or (c) or (d) of this Section, as the case may be, and under
this paragraph (e); and provided, further, that the crediting
of Hours of Service for back pay awarded or agreed to with
respect to periods described in such paragraph (b) shall be
subject to the limitations set forth in Section 2.3; and
(f) unless otherwise provided in Schedule I, each hour described
above that would have been credited to the employee for
employment with a Predecessor Employer if such Predecessor
Employer had been an Employer.
Notwithstanding the foregoing and solely for purposes of determining
whether a person who is on a maternity/paternity absence beginning on
or after the first day of the first Plan Year that commences on or
after January 1, 1985, has incurred a Break in Service, Hours of
Service shall include those hours with which such person would
otherwise have been credited but for such maternity/paternity absence,
or shall include eight Hours of Service for each day of
maternity/paternity absence if the actual hours to be credited cannot
be determined; except that not more than 501 hours are to be credited
by reason of any maternity/paternity absence. Any hours included as
Hours of Service pursuant to the immediately preceding sentence shall
be credited to the Plan Year in which the absence from employment
begins, if such person otherwise would incur a Break in Service in
such Plan Year, or, in any other case, to the immediately following
Plan Year.
For purposes of this Section, a "maternity/paternity absence" means a
person's absence from employment with an Employer or a Related Company
because of the person's pregnancy, the birth of the person's child,
the placement of a child with the person in connection with the
person's adoption of the child, or the caring for the person's child
immediately following the child's birth or adoption. A person's
absence from employment will not be considered a maternity/paternity
absence unless the person furnishes the Administrator such timely
information as may reasonably be required to establish that the
absence was for one of the purposes enumerated in this paragraph and
to establish the number of days of absence attributable to such
purpose.
8
2.2 HOURS OF SERVICE EQUIVALENCIES
Notwithstanding any other provision of the Plan to the contrary, an
Employer may elect to credit Hours of Service to its employees in
accordance with one of the following equivalencies, and if an Employer
does not maintain records that accurately reflect actual hours of
service, such Employer shall credit Hours of Service to its employees
in accordance with one of the following equivalencies:
(a) If the Employer maintains its records on the basis of days
worked, an employee shall be credited with 10 Hours of Service
for each day on which he is required to be credited with an
Hour of Service.
(b) If the Employer maintains its records on the basis of weeks
worked, an employee shall be credited with 45 Hours of Service
for each week in which he is required to be credited with an
Hour of Service.
(c) If the Employer maintains its records on the basis of semi-
monthly payroll periods, an employee shall be credited with 95
Hours of Service for each semi-monthly payroll period in which
he is required to be credited with an Hour of Service.
(d) If the Employer maintains its records on the basis of bi-weekly
payroll periods, an employee shall be credited with 90 Hours of
Service for each bi-weekly payroll period in which he is
required to be credited with an Hour of Service.
(e) If the Employer maintains its records on the basis of months
worked, an employee shall be credited with 190 Hours of Service
for each month in which he is required to be credited with an
Hour of Service.
2.3 LIMITATIONS ON CREDITING OF HOURS OF SERVICE
In the application of the provisions of paragraph (b) of Section 2.2,
the following shall apply:
(a) An hour for which a person is directly or indirectly paid, or
entitled to payment, on account of a period during which no
duties are performed shall not be credited to him if such
payment is made or due under a plan maintained solely for the
purpose of complying with applicable workers' compensation,
unemployment compensation, or disability insurance laws.
(b) Hours of Service shall not be credited with respect to a
payment which solely reimburses a person for medical or
medically-related expenses incurred by him.
9
(c) A payment shall be deemed to be made by or due from an Employer
or a Related Company (i) regardless of whether such payment is
made by or due from such employer directly or indirectly,
through (among others) a trust fund or insurer to which any
such employer contributes or pays premiums, and (ii) regardless
of whether contributions made or due to such trust fund,
insurer, or other entity are for the benefit of particular
persons or are on behalf of a group of persons in the
aggregate.
2.4 DEPARTMENT OF LABOR RULES
The rules set forth in paragraphs (b) and (c) of Department of Labor
Regulations Section 2530.200b-2, which relate to determining Hours
of Service attributable to reasons other than the performance of duties
and crediting Hours of Service to computation periods, are hereby
incorporated into the Plan by reference.
2.5 YEARS OF VESTING SERVICE
Years of Vesting Service shall be determined in accordance with the
following provisions:
(a) An employee shall be credited with a year of Vesting Service
for each Plan Year during which he completes at least 1,000
Hours of Service.
(b) Notwithstanding the provisions of paragraph (a), service
completed by an employee prior to a Termination Date shall not
be included in determining the employee's years of Vesting
Service unless either (1) the employee had a nonforfeitable
right to any portion of his Account, excluding that portion of
his Account that is attributable to Employee or Rollover
Contributions, before such Termination Date, or (2) the number
of his consecutive Breaks in Service after such Termination
Date is less than the greater of five or the aggregate number
of his years of Vesting Service before such Termination Date.
10
ARTICLE III
ELIGIBILITY
3.1 ELIGIBILITY
Each Employee who was an Eligible Employee immediately prior to the
effective date of this amendment and restatement shall continue to be
an Eligible Employee. Each other Employee shall become an Eligible
Employee as of the Enrollment Date coinciding with or next following
the date on which he becomes an Employee.
3.2 TRANSFERS OF EMPLOYMENT
If a person is transferred directly from employment with an Employer
or with a Related Company in a capacity other than as an Employee to
employment as an Employee, he shall become an Eligible Employee as of
the later of the date he is so transferred or the date he would have
become an Eligible Employee if he had been an Employee for his entire
period of employment with the Employer or Related Company.
3.3 RE-EMPLOYMENT
If a person who terminated employment with all Employers and Related
Companies is re-employed as an Employee prior to incurring a Break in
Service, he shall become an Eligible Employee as of the later of the
date he is re-employed or the date he would have become an Eligible
Employee if he had continued in employment. If a person who
terminated employment with all Employers and Related Companies is re-
employed as an Employee after incurring a Break in Service, he shall
become an Eligible Employee as of the Enrollment Date coinciding with
or next following his re-employment date.
3.4 NOTIFICATION CONCERNING NEW ELIGIBLE EMPLOYEES
Each Employer shall notify the Administrator as soon as practicable of
Employees becoming Eligible Employees as of any date.
3.5 EFFECT AND DURATION
Upon becoming an Eligible Employee, an Employee shall be entitled to
elect to have Salary Deferral Contributions made to the Plan on his
behalf and shall be bound by all the terms and conditions of the Plan
and the Trust Agreement. A person shall continue as an Eligible
Employee eligible to have Salary Deferral Contributions made to the
Plan on his behalf only so long as he continues in employment as an
Employee.
11
ARTICLE IV
SALARY DEFERRAL CONTRIBUTIONS
4.1 SALARY DEFERRAL CONTRIBUTIONS
Effective as of the date he becomes an Eligible Employee and any
subsequent date, each Eligible Employee may elect in accordance with
rules prescribed by the Administrator to have Salary Deferral
Contributions made to the Plan on his behalf by his Employer as
hereinafter provided; provided, however, that notwithstanding any
other provision of the Plan to the contrary, no Highly Compensated
Employee shall be considered an Eligible Employee for purposes of
eligibility to make Salary Deferral Contributions during pay dates
that occur in the months of February and March, 1998. An Eligible
Employee's election shall include his authorization for his Employer
to reduce his Compensation and/or eligible bonus and to make Salary
Deferral Contributions on his behalf. Salary Deferral Contributions
on behalf of an Eligible Employee shall commence as soon as reasonably
practicable after the date on which his election is received by the
Administrator. Notwithstanding any other provision of the Plan to the
contrary, if a person is no longer an Eligible Employee on the date an
eligible bonus would otherwise be paid, no Salary Deferral
Contribution with respect to such eligible bonus shall be made on his
behalf, and the person shall receive payment of his full eligible
bonus, if any. For purposes hereof, a "bonus" is the amount paid to
an Eligible Employee (or that would be paid to him except for his
election to have Salary Deferral Contributions made on his behalf)
that is designated as such by his Employer and an "eligible bonus" is
any bonus that the Employer designates as eligible for deferral
hereunder; provided, however, that such designation shall be made on a
uniform and non-discriminatory basis.
4.2 AMOUNT OF SALARY DEFERRAL CONTRIBUTIONS
The amount of Salary Deferral Contributions to be made to the Plan on
behalf of an Eligible Employee by his Employer shall be the sum of the
following:
(a) an integral percentage of the Eligible Employee's Compensation
of not less than one percent nor more than the percentage
designated by the Administrator for the Plan Year; and
(b) an integral percentage of the Eligible Employee's eligible
bonus of not less than one percent nor more than 100 percent.
In the event an Eligible Employee elects to have his Employer make
Salary Deferral Contributions on his behalf, his Compensation and/or
eligible bonus shall be reduced for each payment period by the
12
percentage he elects to have contributed on his behalf to the Plan in
accordance with his currently effective salary deferral
authorizations.
4.3 CHANGES IN SALARY DEFERRAL AUTHORIZATION
An Eligible Employee may change the percentage or the amount of his
future Compensation and/or eligible bonus that his Employer
contributes on his behalf as Salary Deferral Contributions at such
time or times during the Plan Year as the Administrator may prescribe,
by filing an amended salary deferral authorization with his Employer
such number of days prior to the date such change is to become
effective as the Administrator shall prescribe. An Eligible Employee
who changes his salary deferral authorization shall be limited to
selecting a percentage otherwise permitted under Section 4.2. Salary
Deferral Contributions shall be made on behalf of such Eligible
Employee by his Employer pursuant to his amended salary deferral
authorization filed in accordance with this Section commencing as soon
as administratively feasible with respect to Compensation and/or
eligible bonuses paid to the Eligible Employee on or after the date
such filing is effective, until otherwise altered or terminated in
accordance with the Plan.
4.4 SUSPENSION OF SALARY DEFERRAL CONTRIBUTIONS
An Eligible Employee on whose behalf Salary Deferral Contributions are
being made may have such contributions suspended at any time by giving
such number of days advance notice to his Employer as the
Administrator shall prescribe. Any such voluntary suspension shall
take effect commencing as soon as administratively feasible with
respect to Compensation and on or after the expiration of the required
notice period with respect to eligible bonuses and shall remain in
effect until Salary Deferral Contributions are resumed as hereinafter
set forth.
4.5 RESUMPTION OF SALARY DEFERRAL CONTRIBUTIONS
An Eligible Employee who has voluntarily suspended his Salary Deferral
Contributions in accordance with Section 4.4 may have such
contributions resumed at such time or times during the Plan Year as
the Administrator may prescribe, by filing a new salary deferral
authorization with his Employer such number of days prior to the date
as of which such contributions are to be resumed as the Administrator
shall prescribe.
13
4.6 DELIVERY OF SALARY DEFERRAL CONTRIBUTIONS
As soon after the date an amount would otherwise be paid to an
Employee as it can reasonably be separated from Employer assets, each
Employer shall cause to be delivered to the Trustee in cash all Salary
Deferral Contributions attributable to such amounts.
4.7 VESTING OF SALARY DEFERRAL CONTRIBUTIONS
A Participant's vested interest in his Salary Deferral Contributions
Sub-Account shall be at all times 100 percent.
ARTICLE V
EMPLOYEE AND ROLLOVER CONTRIBUTIONS
5.1 DISCONTINUATION OF EMPLOYEE CONTRIBUTIONS
Employee Contributions to the Plan were discontinued effective January
1, 1987.
5.2 ROLLOVER CONTRIBUTIONS
Effective April 1, 1998, an Employee who was a participant in a plan
qualified under Section 401 of the Code, regardless of the company
maintaining such plan, and who receives a cash distribution from such
plan that he elects either (i) to roll over immediately to a qualified
retirement plan or (ii) to roll over into a conduit IRA from which he
receives a later cash distribution, may elect to make a Rollover
Contribution to the Plan if he is entitled under Section 402(c),
Section 403(a)(4), or Section 408(d)(3)(A) of the Code to roll over
such distribution to another qualified retirement plan. The
Administrator may require an Employee to provide it with such
information as it deems necessary or desirable to show that he is
entitled to roll over such distribution to another qualified
retirement plan. An Employee shall make a Rollover Contribution to
the Plan by delivering, or causing to be delivered, to the Trustee the
cash that constitutes the Rollover Contribution amount within 60 days
of receipt of the distribution from the plan or from the conduit IRA
in the manner prescribed by the Administrator. If the Employee does
not already have an investment election on file with the
Administrator, the Employee shall also deliver to the Administrator
his election as to the investment of his contributions in accordance
with Article IX.
14
5.3 VESTING OF EMPLOYEE CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS
A Participant's vested interest in his Employee Contributions
Sub-Account and his Rollover Contributions Sub-Account shall be at all
times 100 percent.
ARTICLE VI
EMPLOYER REGULAR CONTRIBUTIONS
6.1 CONTRIBUTION PERIOD
The Contribution Period for Employer Regular Contributions under the
Plan shall be each Plan Year. The Contribution Period for Employer
Matching Contributions under the Plan shall be each payroll period.
6.2 AMOUNT AND ALLOCATION OF EMPLOYER REGULAR CONTRIBUTIONS
An Employer Regular Contribution shall be made to the Plan for each
Contribution Period and shall be allocated to the Account of each
Employee who is eligible to participate in the allocation of Employer
Regular Contributions for the Contribution Period, as determined under
this Article, in an amount equal to 6 percent of the Compensation paid
to each such Employee during the Contribution Period. In addition,
the Sponsor may, in its discretion, based on the Economic Value Added
of the Sponsor and Related Companies for the Contribution Period,
determine that a further Employer Regular Contribution be made to the
Plan for the Contribution Period and allocated to the Account of each
Employee who is eligible to participate in the allocation of Employer
Regular Contributions for the Contribution Period, in an amount up to
3 percent of the Compensation paid each such Employee during the
Contribution Period.
6.3 AMOUNT AND ALLOCATION OF EMPLOYER MATCHING CONTRIBUTIONS
Each Employer shall make an Employer Matching Contribution to the Plan
for each Contribution Period within the "catch-up period" in an amount
equal to 100 percent of the "eligible Salary Deferral Contributions"
for such Contribution Period made on behalf of its Employees during
such Contribution Period who are eligible to participate in the
allocation of Employer Matching Contributions for such Contribution
Period, as determined under this Article. For purposes of this
paragraph, "catch-up period" means the period beginning on the first
pay date after April 1, 1998 and ending on (a) for individuals paid on
a bi-weekly basis, the 7th pay date thereafter and (b) for individuals
paid on a weekly basis, the 14th pay date thereafter.
15
Effective for Contribution Periods beginning after the catch-up
period, each Employer shall make an Employer Matching Contribution to
the Plan for each Contribution Period in an amount equal to 50 percent
of the "eligible Salary Deferral Contributions" for the Contribution
Period made on behalf of its Employees during the Contribution Period
who are eligible to participate in the allocation of Employer Matching
Contributions for the Contribution Period, as determined under this
Article.
For purposes of this Section 6.3, "eligible Salary Deferral
Contributions" with respect to an Employee mean the Salary Deferral
Contributions made on his behalf for the Contribution Period,
excluding any Salary Deferral Contributions made pursuant to Section
4.2(b), in an amount up to, but not exceeding, the "match level". For
purposes of this Article, the "match level" means 6 percent of an
Employee's Compensation for the Contribution Period.
6.4 VERIFICATION OF AMOUNT OF EMPLOYER REGULAR CONTRIBUTIONS AND
EMPLOYER MATCHING CONTRIBUTIONS BY THE SPONSOR
The Sponsor shall verify the amount of Employer Regular Contributions
and Employer Matching Contributions to be made by each Employer in
accordance with the provisions of the Plan. Notwithstanding any other
provision of the Plan to the contrary, the amount and allocation of
Employer Regular Contributions and Employer Matching Contributions
with respect to an Employee who transfers from employment with one
Employer as an Employee to employment with another Employer as an
Employee during a Contribution Period shall be determined as if the
Employee had been employed for the entire Contribution Period by the
Employer that is his Employer on the last day of the Contribution
Period.
6.5 PAYMENT OF EMPLOYER REGULAR CONTRIBUTIONS AND EMPLOYER MATCHING
CONTRIBUTIONS
Employer Regular Contributions and Employer Matching Contributions
made for a Contribution Period shall be paid in cash to the Trustee
within the period of time required under the Code in order for the
contribution to be deductible by the Employer in determining its
Federal income taxes for the Plan Year.
6.6 ELIGIBILITY TO PARTICIPATE IN ALLOCATION
Each Employee shall be eligible to participate in the allocation of
Employer Regular Contributions and Employer Matching Contributions
beginning on the date he becomes, or again becomes, an Eligible
Employee in accordance with the provisions of Article III.
Notwithstanding the foregoing, no person shall be eligible to
participate in the allocation of Employer Regular Contributions for a
16
Contribution Period unless (i) he is employed by an Employer as an
Employee on the last day of the Contribution Period and (ii) he has
completed at least 1,000 Hours of Service during the Contribution
Period; provided, however, that the following special rules shall
apply:
(a) the foregoing provisions shall not apply to a person who
terminates employment during the Contribution Period because of
death or Disability and who receives Compensation for the
Contribution Period prior to such termination of employment;
(b) if an Employee is absent from work during a Contribution Period
because of an approved leave of absence, he shall not be
eligible to participate in the allocation of Employer Regular
Contributions for the Contribution Period unless he received
Compensation for the Contribution Period; and
(c) if an Employee is on Military Leave during a Contribution
Period, he shall be eligible to participate in the allocation
of Employer Regular Contributions for the Contribution Period
only as provided in Section 20.10 of the Plan.
Notwithstanding any other provision of the Plan to the contrary, if
the Plan would not otherwise meet the minimum coverage requirements of
Section 410(b) of the Code in any Plan Year, the group of Employees
eligible to participate in the allocation of Employer Regular
Contributions shall be expanded to include the minimum number of
Employees who would be eligible to participate except for their
failure to complete the required number of Hours of Service during the
Plan Year that is necessary to meet the minimum coverage requirements.
The Employees who become eligible to participate under the provisions
of the immediately preceding sentence shall be those Employees who
have completed the greatest number of Hours of Service during the Plan
Year. If the Plan still would not meet the minimum coverage
requirements of Section 410(b) of the Code, the group of Employees
shall be expanded further to include the minimum number of Employees
who are not employed by an Employer or a Related Company on the last
day of the Contribution Period that is necessary to meet the minimum
coverage requirements. The Employees who become eligible to
participate under the provisions of the immediately preceding sentence
shall be those Employees who have completed the greatest number of
Hours of Service during the Contribution Period.
6.7 VESTING OF EMPLOYER REGULAR CONTRIBUTIONS AND EMPLOYER MATCHING
CONTRIBUTIONS
A Participant's vested interest in his Employer Matching Contributions
Sub-Account shall be at all times 100 percent. A Participant's vested
17
interest in his Employer Regular Contributions Sub-Account shall be
determined in accordance with the following schedule:
Years of Vesting Service Vested Interest
------------------------ ---------------
Less than 3 0%
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
Notwithstanding the foregoing, if a Participant is employed by an
Employer or a Related Company on his Normal Retirement Date, the date
he becomes Disabled, or the date he dies, his vested interest in his
Employer Regular Contributions Sub-Account shall be 100 percent.
6.8 ELECTION OF FORMER VESTING SCHEDULE
If the Sponsor adopts an amendment to the Plan that directly or
indirectly affects the computation of a Participant's vested interest
in his Employer Regular Contributions and Employer Matching
Contributions Sub-Accounts, any Participant with three or more years
of Vesting Service shall have a right to have his vested interest in
his Employer Regular Contributions and Employer Matching Contributions
Sub-Accounts continue to be determined under the vesting provisions in
effect prior to the amendment rather than under the new vesting
provisions, unless the vested interest of the Participant in his
Employer Regular Contributions and Employer Matching Contributions
Sub-Accounts under the Plan as amended is not at any time less than
such vested interest determined without regard to the amendment. A
Participant shall exercise his right under this Section by giving
written notice of his exercise thereof to the Administrator within 60
days after the latest of (i) the date he receives notice of the
amendment from the Administrator, (ii) the effective date of the
amendment, or (iii) the date the amendment is adopted.
Notwithstanding the foregoing, a Participant's vested interest in his
Employer Regular Contributions and Employer Matching Contributions
Sub-Accounts on the effective date of such an amendment shall not be
less than his vested interest in his Employer Regular Contributions
and Employer Matching Contributions Sub-Accounts immediately prior to
the effective date of the amendment.
18
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 DEFINITIONS
For purposes of this Article, the following terms have the following
meanings:
(a) The "actual deferral percentage" with respect to an Eligible
Employee for a particular Plan Year means the ratio of the
Salary Deferral Contributions made on his behalf for the Plan
Year to his test compensation for the Plan Year; provided,
however, that contributions made on a Participant's behalf for
a Plan Year shall be included in determining his actual
deferral percentage for such Plan Year only if the
contributions are made to the Plan prior to the end of the 12-
month period immediately following the Plan Year to which the
contributions relate. The determination and treatment of the
actual deferral percentage amounts for any Participant shall
satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
(b) The "aggregate limit" means the sum of (i) 125 percent of the
greater of the average contribution percentage for eligible
participants other than Highly Compensated Employees or the
average actual deferral percentage for Eligible Employees other
than Highly Compensated Employees and (ii) the lesser of 200
percent or two plus the lesser of such average contribution
percentage or average actual deferral percentage, or, if it
would result in a larger aggregate limit, the sum of (iii) 125
percent of the lesser of the average contribution percentage
for eligible participants other than Highly Compensated
Employees or the average actual deferral percentage for
Eligible Employees other than Highly Compensated Employees and
(iv) the lesser of 200 percent or two plus the greater of such
average contribution percentage or average actual deferral
percentage.
(c) The "annual addition" with respect to a Participant for a
limitation year means the sum of the Salary Deferral
Contributions, Employer Matching Contributions and Employer
Regular Contributions allocated to his Account for the
limitation year (including any excess contributions that are
distributed pursuant to this Article), the employer
contributions, employee contributions, and forfeitures
allocated to his accounts for the limitation year under any
other qualified defined contribution plan (whether or not
terminated) maintained by an Employer or a Related Company
19
concurrently with the Plan, and amounts described in Sections
415(l)(2) and 419A(d)(2) of the Code allocated to his account
for the limitation year.
(d) The "Code Section 402(g) limit" means the dollar limit imposed
by Section 402(g)(1) of the Code or established by the
Secretary of the Treasury pursuant to Section 402(g)(5) of the
Code in effect on January 1 of the calendar year in which an
Eligible Employee's taxable year begins.
(e) The "contribution percentage" with respect to an eligible
participant for a particular Plan Year means the ratio of the
matching contributions made to the Plan on his behalf for the
Plan Year to his test compensation for such Plan Year, except
that, to the extent permitted by regulations issued under
Section 401(m) of the Code, the Sponsor may elect to take into
account in computing the numerator of each eligible
participant's contribution percentage the Salary Deferral
Contributions made to the Plan on his behalf for the Plan Year;
provided, however, that any Salary Deferral Contributions that
were taken into account in computing the numerator of an
eligible participant's actual deferral percentage may not be
taken into account in computing the numerator of his
contribution percentage; and provided, further, that
contributions made by or on a Participant's behalf for a Plan
Year shall be included in determining his contribution
percentage for such Plan Year only if the contributions are
made to the Plan prior to the end of the 12-month period
immediately following the Plan Year to which the contributions
relate. The determination and treatment of the contribution
percentage amounts for any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
(f) An "elective contribution" means any employer contribution made
to a plan maintained by an Employer or any Related Company on
behalf of a Participant in lieu of cash compensation pursuant
to his election to defer under any qualified CODA as described
in Section 401(k) of the Code, any simplified employee pension
cash or deferred arrangement as described in Section
402(h)(1)(B) of the Code, any eligible deferred compensation
plan under Section 457 of the Code, or any plan as described in
Section 501(c)(18) of the Code, and any contribution made on
behalf of the Participant by an Employer or a Related Company
for the purchase of an annuity contract under Section 403(b) of
the Code pursuant to a salary reduction agreement.
(g) An "eligible participant" means any Employee who is eligible to
have Salary Deferral Contributions made on his behalf (if
20
Salary Deferral Contributions are taken into account in
computing contribution percentages), or to participate in the
allocation of matching contributions.
(h) An "excess deferral" with respect to a Participant means that
portion of a Participant's Salary Deferral Contributions that
when added to amounts deferred under other plans or
arrangements described in Sections 401(k), 408(k), or 403(b) of
the Code, would exceed the Code Section 402(g) limit and is
includable in the Participant's gross income under Section
402(g) of the Code.
(i) A "limitation year" means the Plan Year.
(j) A "matching contribution" means any employer contribution
allocated to an Eligible Employee's account under the Plan or
any other plan of an Employer or a Related Company solely on
account of elective contributions made on his behalf or
employee contributions made by him.
(k) The "test compensation" of an Eligible Employee for a Plan Year
means compensation as defined in Section 414(s) of the Code and
regulations issued thereunder, limited, however, to $160,000
(subject to adjustment annually as provided in Section
401(a)(17)(B) and Section 415(d) of the Code). If the test
compensation of a Participant is determined over a period of
time that contains fewer than 12 calendar months, then the
annual compensation limitation described above shall be
adjusted with respect to that Participant by multiplying the
annual compensation limitation in effect for the Plan Year by a
fraction the numerator of which is the number of full months in
the period and the denominator of which is 12; provided,
however, that no proration is required for a Participant who is
covered under the Plan for less than one full Plan Year if the
formula for allocations is based on Compensation for a period
of at least 12 months.
(l) The "testing year" means the Plan Year immediately preceding
the Plan Year for which the limitations on actual deferral
percentages and contribution percentages of Highly Compensated
Employees are being determined. Notwithstanding the foregoing,
for Plan Year(s) ending in 1997 and 1998, the limitations on
actual deferral percentages and contribution percentages of
Highly Compensated Employees were determined using the Plan
Year for which the limitations were being determined as the
testing year.
21
7.2 CODE SECTION 402(G) LIMIT
In no event shall the amount of the Salary Deferral Contributions made
on behalf of an Eligible Employee for his taxable year, when
aggregated with any elective contributions made on behalf of the
Eligible Employee under any other plan of an Employer or a Related
Company for his taxable year, exceed the Code Section 402(g) limit.
In the event that the Administrator determines that the deferral
percentage elected by an Eligible Employee will result in his
exceeding the Code Section 402(g) limit, the Administrator may adjust
the salary deferral authorization of such Eligible Employee by
reducing the percentage of his Salary Deferral Contributions to such
smaller percentage that will result in the Code Section 402(g) limit
not being exceeded. If the Administrator determines that the Salary
Deferral Contributions made on behalf of an Eligible Employee would
exceed the Code Section 402(g) limit for his taxable year, the Salary
Deferral Contributions for such Participant shall be automatically
suspended for the remainder, if any, of such taxable year.
If an Employer notifies the Administrator that the Code Section 402(g)
limit has nevertheless been exceeded by an Eligible Employee for his
taxable year, the Salary Deferral Contributions that, when aggregated
with elective contributions made on behalf of the Eligible Employee
under any other plan of an Employer or a Related Company, would exceed
the Code Section 402(g) limit, plus any income and minus any losses
attributable thereto, shall be distributed to the Eligible Employee no
later than the April 15 immediately following such taxable year. Any
Salary Deferral Contributions that are distributed to an Eligible
Employee in accordance with this Section shall NOT be taken into
account in computing the Eligible Employee's actual deferral
percentage for the Plan Year in which the Salary Deferral
Contributions were made, unless the Eligible Employee is a Highly
Compensated Employee.
7.3 DISTRIBUTION OF EXCESS DEFERRALS
Notwithstanding any other provision of the Plan to the contrary, if a
Participant notifies the Administrator in writing no later than the
March 1 following the close of the Participant's taxable year that
excess deferrals have been made on his behalf under the Plan for such
taxable year, the excess deferrals, plus any income and minus any
losses attributable thereto, shall be distributed to the Participant
no later than the April 15 immediately following such taxable year.
Any Salary Deferral Contributions that are distributed to a
Participant in accordance with this Section shall nevertheless be
taken into account in computing the Participant's actual deferral
percentage for the Plan Year in which the Salary Deferral
Contributions were made.
22
7.4 LIMITATION ON SALARY DEFERRAL CONTRIBUTIONS OF HIGHLY
COMPENSATED EMPLOYEES
Notwithstanding any other provision of the Plan to the contrary, the
Salary Deferral Contributions made with respect to a Plan Year on
behalf of Eligible Employees who are Highly Compensated Employees may
not result in an average actual deferral percentage for such Eligible
Employees that exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average actual
deferral percentage for all other Eligible Employees for the
testing year; or
(b) a percentage that is not more than 200 percent of the average
actual deferral percentage for all other Eligible Employees for
the testing year and that is not more than two percentage
points higher than the average actual deferral percentage for
all other Eligible Employees for the testing year.
In order to assure that the limitation contained herein is not
exceeded with respect to a Plan Year, the Administrator is authorized
to suspend completely further Salary Deferral Contributions on behalf
of Highly Compensated Employees for any remaining portion of a Plan
Year or to adjust the projected actual deferral percentages of Highly
Compensated Employees by reducing their percentage elections with
respect to Salary Deferral Contributions for any remaining portion of
a Plan Year to such smaller percentages that will result in the
limitation set forth above not being exceeded. In the event of any
such suspension or reduction, Highly Compensated Employees affected
thereby shall be notified of the reduction or suspension as soon as
possible and shall be given an opportunity to make a new Salary
Deferral Contribution election to be effective the first day of the
next following Plan Year.
In determining the actual deferral percentage for any Eligible
Employee who is a Highly Compensated Employee for the Plan Year,
elective contributions made to his accounts under any other plan of an
Employer or a Related Company shall be treated as if all such
contributions were made to the Plan; provided, however, that if such a
plan has a plan year different from the Plan Year, any such
contributions made to the Highly Compensated Employee's accounts under
the plan for the plan year ending with or within the same calendar
year as the Plan Year shall be treated as if such contributions were
made to the Plan. Notwithstanding the foregoing, such contributions
shall not be treated as if they were made to the Plan if regulations
issued under Section 401(k) of the Code do not permit such plan to be
aggregated with the Plan.
23
If one or more plans of an Employer or Related Company are aggregated
with the Plan for purposes of satisfying the requirements of Section
401(a)(4) or 410(b) of the Code, then actual deferral percentages
under the Plan shall be calculated as if the Plan and such one or more
other plans were a single plan. Plans may be aggregated to satisfy
Section 401(k) of the Code only if they have the same plan year.
The Administrator shall maintain records sufficient to show that the
limitation contained in this Section was not exceeded with respect to
any Plan Year.
Notwithstanding any other provision of the Plan to the contrary, in
the event that the limitation contained in this Section is exceeded in
any Plan Year, the Administrator shall determine the dollar amount of
the excess by reducing the dollar amount of contributions made on
behalf of Highly Compensated Employees in order of their actual
deferral percentages beginning with the highest of such percentages.
The determination of the amount of excess contributions hereunder
shall be made after amounts contributed in excess of the limitation in
effect under Section 402(g) of the Code have been distributed pursuant
to this Article, if applicable.
After determining the dollar amount of the excess contributions that
have been made to the Plan, the Administrator shall allocate such
excess among Highly Compensated Employees in order of the dollar
amount of the Salary Deferral Contributions allocated to their
Accounts as follows:
(a) The contributions made on behalf of the Highly Compensated
Employee with the largest dollar amount of Salary Deferral
Contributions allocated to his Account for the Plan Year shall
be reduced to the greater of (i) the dollar amount of the
excess or (ii) the dollar amount of such contributions made on
behalf of the Highly Compensated Employee with the next highest
dollar amount of such contributions allocated to his Account
for the Plan Year.
(b) If the excess has not been fully allocated after application of
the provisions of paragraph (a), the Administrator shall
continue reducing the contributions made on behalf of Highly
Compensated Employees, continuing with the Highly Compensated
Employees with the largest remaining dollar amount of such
contributions allocated to their Accounts for the Plan Year, in
the manner provided in paragraph (a) until the entire excess
determined above has been allocated.
24
7.5 DISTRIBUTION OF EXCESS SALARY DEFERRAL CONTRIBUTIONS
Excess contributions allocated to a Highly Compensated Employee
pursuant to the preceding Section, plus any income and minus any
losses attributable thereto, shall be distributed to the Highly
Compensated Employee prior to the end of the next succeeding Plan
Year. If such excess amounts are distributed more than 2-1/2 months
after the last day of the Plan Year for which the excess occurred, an
excise tax may be imposed under Code Section 4979 on the Employer
maintaining the Plan with respect to such amounts.
If an amount of Salary Deferral Contributions is distributed to a
Participant in accordance with this Section, Matching Contributions
that are attributable solely to the distributed Salary Deferral
Contributions, plus any income and minus any losses attributable
thereto, shall be forfeited by the Participant as of the last day of
the month in which the distribution of Salary Deferral Contributions
pursuant to this Section occurs. Any such forfeited amounts shall be
treated as a forfeiture under the Plan in accordance with the
provisions of Article XIV as of the date distribution of Salary
Deferral Contributions pursuant to this Section occurs.
7.6 LIMITATION ON MATCHING CONTRIBUTIONS OF HIGHLY COMPENSATED
EMPLOYEES
Notwithstanding any other provision of the Plan to the contrary, the
Matching Contributions made with respect to a Plan Year on behalf of
eligible participants who are Highly Compensated Employees may not
result in an average contribution percentage for such eligible
participants that exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
contribution percentage for all other eligible participants for
the testing year; or
(b) a percentage that is not more than 200 percent of the average
contribution percentage for all other eligible participants for
the testing year and that is not more than two percentage
points higher than the average contribution percentage for all
other eligible participants for the testing year.
In determining the contribution percentage for any eligible
participant who is a Highly Compensated Employee for the Plan Year,
matching contributions, employee contributions, and elective
contributions (to the extent that elective contributions are taken
into account in computing contribution percentages) made to his
accounts under any other plan of an Employer or a Related Company
shall be treated as if all such contributions were made to the Plan;
provided, however, that if such a plan has a plan year different from
25
the Plan Year, any such contributions made to the Highly Compensated
Employee's accounts under the plan for the plan year ending with or
within the same calendar year as the Plan Year shall be treated as if
such contributions were made to the Plan. Notwithstanding the
foregoing, such contributions shall not be treated as if they were
made to the Plan if regulations issued under Section 401(m) of the
Code do not permit such plan to be aggregated with the Plan.
If one or more plans of an Employer or a Related Company are
aggregated with the Plan for purposes of satisfying the requirements
of Section 401(a)(4) or 410(b) of the Code, the contribution
percentages under the Plan shall be calculated as if the Plan and such
one or more other plans were a single plan. Plans may be aggregated
to satisfy Section 401(m) of the Code only if they have the same plan
year.
The Administrator shall maintain records sufficient to show that the
limitation contained in this Section was not exceeded with respect to
any Plan Year and the amount of the elective contributions taken into
account in computing contribution percentages for any Plan Year.
Notwithstanding any other provision of the Plan to the contrary, in
the event that the limitation contained in this Section is exceeded in
any Plan Year, the Administrator shall determine the dollar amount of
the excess by reducing the dollar amount of contributions made on
behalf of Highly Compensated Employees in order of their contribution
percentages, beginning with the highest of such percentages. The
determination of the amount of excess contributions shall be made
after Matching Contributions attributable to Salary Deferral
Contributions in excess of the limitation contained in Section 402(g)
of the Code and excess Salary Deferral Contributions have been
forfeited pursuant to this Article, if applicable.
After determining the dollar amount of the excess contributions that
have been made to the Plan, the Administrator shall allocate such
excess among Highly Compensated Employees in order of the dollar
amount of the Matching and Salary Deferral Contributions (to the
extent Salary Deferral Contributions are taken into account in
determining contribution percentages) allocated to their Accounts as
follows:
(a) The contributions made on behalf of the Highly Compensated
Employee with the largest dollar amount of Matching and Salary
Deferral Contributions (to the extent such Salary Deferral
Contributions are taken into account in determining
contribution percentages) allocated to his Account for the Plan
Year shall be reduced to the greater of (i) the dollar amount
of the excess or (ii) the dollar amount of such contributions
made on behalf of the Highly Compensated Employee with the next
26
highest dollar amount of such contributions allocated to his
Account for the Plan Year.
(b) If the excess has not been fully allocated after application of
the provisions of paragraph (a), the Administrator shall
continue reducing the contributions made on behalf of Highly
Compensated Employees, continuing with the Highly Compensated
Employees with the largest remaining dollar amount of such
contributions allocated to their Accounts for the Plan Year, in
the manner provided in paragraph (a) until the entire excess
determined above has been allocated.
7.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS
Excess contributions allocated to a Highly Compensated Employee
pursuant to the preceding Section, plus any income and minus any
losses attributable thereto, shall be distributed to the Participant
prior to the end of the next succeeding Plan Year as hereinafter
provided. If excess amounts are distributed hereunder more than 2-1/2
months after the last day of the Plan Year for which the excess
occurred, an excise tax may be imposed under Code Section 4979 on the
Employer maintaining the Plan with respect to such amounts.
7.8 MULTIPLE USE LIMITATION
Notwithstanding any other provision of the Plan to the contrary, the
following multiple use limitation as required under Section 401(m) of
the Code shall apply: the sum of the average actual deferral
percentage for Eligible Employees who are Highly Compensated Employees
and the average contribution percentage for eligible participants who
are Highly Compensated Employees may not exceed the aggregate limit.
In the event that, after satisfaction of Section 7.5 and Section 7.7,
it is determined that contributions under the Plan fail to satisfy the
multiple use limitation contained herein, the multiple use limitation
shall be satisfied by further reducing the actual deferral percentages
of Eligible Employees who are Highly Compensated Employees (beginning
with the highest such percentage) to the extent necessary to eliminate
the excess, with such further reductions to be treated as excess
Salary Deferral Contributions and disposed of as provided in Section
7.5, or in an alternative manner, consistently applied, that may be
permitted by regulations issued under Section 401(m) of the Code.
7.9 DETERMINATION OF INCOME OR LOSS
The income or loss attributable to excess contributions that are
distributed pursuant to this Article shall be determined for the
preceding Plan Year under the method otherwise used for allocating
income or loss to Participant's Accounts.
27
7.10 CODE SECTION 415 LIMITATIONS ON CREDITING OF CONTRIBUTIONS AND
FORFEITURES
Notwithstanding any other provision of the Plan to the contrary, the
annual addition with respect to a Participant for a limitation year
shall in no event exceed the lesser of (i) $30,000 (adjusted as
provided in Section 415(d) of the Code, with the first adjustment
being made for limitation years beginning on or after January 1, 1996)
or (ii) 25 percent of the Participant's compensation, as defined in
Section 415(c)(3) of the Code and regulations issued thereunder, for
the limitation year. If the annual addition to the Account of a
Participant in any limitation year would otherwise exceed the amount
that may be applied for his benefit under the limitation contained in
this Section, the limitation shall be satisfied by reducing
contributions made on behalf of the Participant to the extent
necessary in the following order:
Salary Deferral Contributions made on the Participant's behalf
for the limitation year that have not been matched, if any,
shall be reduced.
Salary Deferral Contributions made on the Participant behalf
for the limitation year that have been matched and the Employer
Matching Contributions attributable thereto, if any, shall be
reduced pro rata.
Employer Regular Contributions otherwise allocable to the
Participant's Account for the limitation year shall be reduced.
The amount of any reduction of Salary Deferral Contributions (plus any
income attributable thereto) shall be returned to the Participant.
The amount of any reduction of Employer Regular Contributions or
Employer Matching Contributions shall be deemed a forfeiture for the
limitation year. Amounts deemed to be forfeitures under this Section
shall be held unallocated in a suspense account established for the
limitation year and shall be applied against the Employer's
contribution obligation for the next following limitation year (and
succeeding limitation years, as necessary). If a suspense account is
in existence at any time during a limitation year, all amounts in the
suspense account must be allocated to Participants' Accounts (subject
to the limitations contained herein) before any further Salary
Deferral Contributions, Employer Matching Contributions or Employer
Regular Contributions may be made to the Plan on behalf of
Participants. No suspense account established hereunder shall share
in any increase or decrease in the net worth of the Trust. For
purposes of this Article, excesses shall result only from the
allocation of forfeitures, a reasonable error in estimating a
Participant's annual compensation (as defined in Section 415(c)(3) of
the Code and regulations issued thereunder), a reasonable error in
28
determining the amount of Salary Deferral Contributions that may be
made with respect to any Participant under the limits of Section 415
of the Code, or other limited facts and circumstances that justify the
availability of the provisions set forth above.
7.11 COVERAGE UNDER OTHER QUALIFIED DEFINED CONTRIBUTION PLAN
If a Participant is covered by any other qualified defined
contribution plan (whether or not terminated) maintained by an
Employer or a Related Company concurrently with the Plan, and if the
annual addition for the limitation year would otherwise exceed the
amount that may be applied for the Participant's benefit under the
limitation contained in Section 7.10, such excess shall be reduced
first by applying the procedures set forth in Section 7.10. If the
limitation contained in Section 7.10 is still not satisfied, such
excess shall be reduced by returning the employee contributions made
by the Participant for the limitation year under all such other plans
and the income attributable thereto to the extent necessary. If the
limitation contained in Section 7.10 is still not satisfied after
returning all of such employee contributions, then the portion of the
employer contributions and of forfeitures for the limitation year
under all such other plans that has been allocated to the Participant
thereunder, but which exceeds the limitation set forth in Section 7.10
shall be reduced and disposed of as provided in such other plans;
provided, however, that if the Participant is covered by a money
purchase pension plan, the forfeiture shall be effected first under
any other defined contribution plan that is not a money purchase
pension plan and, if the limitation is still not satisfied, then under
such money purchase pension plan.
7.12 COVERAGE UNDER QUALIFIED DEFINED BENEFIT PLAN
If a Participant in the Plan is also covered by a qualified defined
benefit plan (whether or not terminated) maintained by an Employer or
a Related Company, in no event shall the sum of the defined benefit
plan fraction (as defined in Section 415(e)(2) of the Code) and the
defined contribution plan fraction (as defined in Section 415(e)(3) of
the Code) exceed 1.0 in any limitation year. If, before October 3,
1973, the Participant was an active participant in a qualified defined
benefit plan maintained by an Employer or a Related Company and
otherwise satisfies the requirements of Section 2004(d)(2) of ERISA,
then for purposes of applying this Section, the defined benefit plan
fraction shall not exceed 1.0. If the Plan satisfied the applicable
requirements of Section 415 of the Code as in effect for all
limitation years beginning before January 1, 1987, an amount shall be
subtracted from the numerator of the defined contribution plan
fraction (not exceeding such numerator) as prescribed by the Secretary
of the Treasury so that the sum of the defined benefit plan fraction
and the defined contribution plan fraction computed under Section
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415(e)(1) of the Code, as revised by the Tax Reform Act of 1986, does
not exceed 1.0 for such limitation year. In the event the special
limitation contained in this Section is exceeded, the benefits
otherwise payable to the Participant under any such qualified defined
benefit plan shall be reduced to the extent necessary to meet such
limitation.
7.13 SCOPE OF LIMITATIONS
The limitations contained in Sections 7.10, 7.11, and 7.12 shall be
applicable only with respect to benefits provided pursuant to defined
contribution plans and defined benefit plans described in Section
415(k) of the Code.
ARTICLE VIII
TRUST FUNDS AND ACCOUNTS
8.1 GENERAL FUND
The Trustee shall maintain a General Fund as required to hold and
administer any assets of the Trust that are not allocated among the
Investment Funds as provided in the Plan or the Trust Agreement. The
General Fund shall be held and administered as a separate common trust
fund. The interest of each Participant or Beneficiary under the Plan
in the General Fund shall be an undivided interest.
8.2 INVESTMENT FUNDS
The Sponsor shall determine the number and type of Investment Funds
and select the investments for such Investment Funds. The Sponsor
shall communicate the same and any changes therein in writing to the
Administrator and the Trustee. Each Investment Fund shall be held and
administered as a separate common trust fund. The interest of each
Participant or Beneficiary under the Plan in any Investment Fund shall
be an undivided interest.
The Sponsor may determine to offer one or more Investment Funds that
are invested in whole or in part in equity securities issued by an
Employer or a Related Company that are publicly traded and are
"qualifying employer securities" as defined in Section 407(d)(5) of
ERISA.
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8.3 LOAN INVESTMENT FUND
If a loan from the Plan to a Participant is approved in accordance
with the provisions of Article XI, the Sponsor shall direct the
establishment and maintenance of a loan Investment Fund in the
Participant's name. The assets of the loan Investment Fund shall be
held as a separate trust fund. A Participant's loan Investment Fund
shall be invested in the note reflecting the loan that is executed by
the Participant in accordance with the provisions of Article XI.
Notwithstanding any other provision of the Plan to the contrary,
income received with respect to a Participant's loan Investment Fund
shall be allocated and the loan Investment Fund shall be administered
as provided in Article XI.
8.4 INCOME ON TRUST
Any dividends, interest, distributions, or other income received by
the Trustee with respect to any Trust Fund maintained hereunder shall
be allocated by the Trustee to the Trust Fund for which the income was
received.
8.5 ACCOUNTS
As of the first date a contribution is made on behalf of an Employee,
there shall be established an Account in his name reflecting his
interest in the Trust. Each Account shall be maintained and
administered for each Participant and Beneficiary in accordance with
the provisions of the Plan. The balance of each Account shall be the
balance of the account after all credits and charges thereto, for and
as of such date, have been made as provided herein.
8.6 SUB-ACCOUNTS
A Participant's Account shall be divided into individual Sub-Accounts
reflecting the portion of the Participant's Account that is derived
from Salary Deferral Contributions, Employee Contributions-Deductible,
Employee Contributions-Non-Deductible, Rollover Contributions,
Employer Matching Contributions or Employer Regular Contributions.
Each Sub-Account shall reflect separately contributions allocated to
each Trust Fund maintained hereunder and the earnings and losses
attributable thereto. Such other Sub-Accounts may be established as
are necessary or appropriate to reflect a Participant's interest in
the Trust, including a Sub-Account reflecting the portion of the
Participant's Account that is attributable to amounts transferred from
the Rubbermaid Profit Sharing Plan or the GOTT Employee Stock
Ownership Plan and salary deferral contributions transferred from the
Rubbermaid Office Products Inc. 401(k) Savings and Investment Plan.
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ARTICLE IX
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
9.1 FUTURE CONTRIBUTIONS INVESTMENT ELECTIONS
Each Eligible Employee shall make an investment election in the manner
and form prescribed by the Administrator directing the manner in which
his future Salary Deferral Contributions, Rollover Contributions,
Employer Matching Contributions and Employer Regular Contributions
shall be invested. An Eligible Employee's investment election shall
specify the percentage, in the percentage increments prescribed by the
Administrator, of such contributions that shall be allocated to one or
more of the Investment Funds with the sum of such percentages equaling
100 percent. The investment election by a Participant shall remain in
effect until his entire interest under the Plan is distributed or
forfeited in accordance with the provisions of the Plan or until he
files a change of investment election with the Administrator, in such
form as the Administrator shall prescribe. A Participant's change of
investment election may be made effective as of the date or dates
prescribed by the Administrator.
9.2 DEPOSIT OF CONTRIBUTIONS
All Salary Deferral Contributions, Rollover Contributions, Employer
Matching Contributions and Employer Regular Contributions shall be
deposited in the Trust and allocated among the Investment Funds in
accordance with the Participant's currently effective investment
election. Until such Participant shall make an effective election
under this Section, his contributions shall be allocated among the
Investment Funds as directed by the Administrator.
9.3 ELECTION TO TRANSFER BETWEEN FUNDS
A Participant may elect to transfer investments from any Investment
Fund to any other Investment Fund. The Participant's transfer
election shall be in the form prescribed by the Administrator and
shall specify a percentage, not to exceed 100 percent, of the amount
eligible for transfer that is to be transferred. Subject to any
restrictions pertaining to a particular Investment Fund, a
Participant's transfer election may be made effective as of the date
or dates prescribed by the Administrator.
9.4 404(C) PLAN
The Plan is intended to constitute a plan described in Section 404(c)
of ERISA and regulations issued thereunder. The fiduciaries of the
Plan may be relieved of liability for any losses that are the direct
and necessary result of investment instructions given by a
32
Participant, his Beneficiary, or an alternate payee under a qualified
domestic relations order.
ARTICLE X
CREDITING AND VALUING ACCOUNTS
10.1 CREDITING ACCOUNTS
All contributions made under the provisions of the Plan shall be
credited to Accounts in the Trust Funds by the Trustee, in accordance
with procedures established in writing by the Administrator, either
when received or on the succeeding Valuation Date after valuation of
the Trust Fund has been completed for such Valuation Date as provided
in Section 10.2, as shall be determined by the Administrator.
10.2 VALUING ACCOUNTS
Accounts in the Trust Funds shall be valued by the Trustee on the
Valuation Date, in accordance with procedures established in writing
by the Administrator, either in the manner adopted by the Trustee and
approved by the Administrator or in the manner set forth in Section
10.3 as Plan valuation procedures, as determined by the Administrator.
10.3 PLAN VALUATION PROCEDURES
With respect to the Trust Funds, the Administrator may determine that
the following valuation procedures shall be applied. As of each
Valuation Date hereunder, the portion of any Accounts in a Trust Fund
shall be adjusted to reflect any increase or decrease in the value of
the Trust Fund for the period of time occurring since the immediately
preceding Valuation Date for the Trust Fund (the "valuation period")
in the following manner:
(a) First, the value of the Trust Fund shall be determined by
valuing all of the assets of the Trust Fund at fair market
value.
(b) Next, the net increase or decrease in the value of the Trust
Fund attributable to net income and all profits and losses,
realized and unrealized, during the valuation period shall be
determined on the basis of the valuation under paragraph (a)
taking into account appropriate adjustments for contributions,
loan payments, and transfers to and distributions, withdrawals,
loans, and transfers from such Trust Fund during the valuation
period.
33
(c) Finally, the net increase or decrease in the value of the Trust
Fund shall be allocated among Accounts in the Trust Fund in the
ratio of the balance of the portion of such Account in the
Trust Fund as of the preceding Valuation Date less any
distributions, withdrawals, loans, and transfers from such
Account balance in the Trust Fund since the Valuation Date to
the aggregate balances of the portions of all Accounts in the
Trust Fund similarly adjusted, and each Account in the Trust
Fund shall be credited or charged with the amount of its
allocated share. Notwithstanding the foregoing, the
Administrator may adopt such accounting procedures as it
considers appropriate and equitable to establish a
proportionate crediting of net increase or decrease in the
value of the Trust Fund for contributions, loan payments, and
transfers to and distributions, withdrawals, loans, and
transfers from such Trust Fund made by or on behalf of a
Participant during the valuation period.
10.4 FINALITY OF DETERMINATIONS
The Trustee shall have exclusive responsibility for determining the
balance of each Account maintained hereunder. The Trustee's
determinations thereof shall be conclusive upon all interested
parties.
10.5 NOTIFICATION
Within a reasonable period of time after the end of each Plan Year,
the Administrator shall notify each Participant and Beneficiary of the
balances of his Account and Sub-Accounts as of a Valuation Date during
the Plan Year.
ARTICLE XI
LOANS
11.1 APPLICATION FOR LOAN
A Participant who is a party in interest may make application to the
Administrator for a loan from his Account, other than his Employee
Contributions-Non-Deductible Sub-Account; provided, however, that no
loans shall be made to an Employee who makes a Rollover Contribution
in accordance with Section 5.2, but who is not an Eligible Employee as
provided in Article III. Loans shall be made to Participants in
accordance with written rules prescribed by the Administrator which
are hereby incorporated into and made a part of the Plan.
34
As collateral for any loan granted hereunder, the Participant shall
grant to the Plan a security interest in his vested interest under the
Plan equal to the amount of the loan; provided, however, that in no
event may the security interest exceed 50 percent of the Participant's
vested interest under the Plan determined as of the date as of which
the loan is originated in accordance with Plan provisions. No loan in
excess of 50 percent of the Participant's vested interest under the
Plan shall be made from the Plan. Loans shall not be made available
to Highly Compensated Employees in an amount greater than the amount
made available to other employees.
A loan shall not be granted unless the Participant consents to the
charging of his Account for unpaid principal and interest amounts in
the event the loan is declared to be in default.
If a portion of a Participant's Account is attributable to his prior
account under the Rubbermaid Profit Sharing Plan that was merged into
the Plan, the Participant's spouse must consent in writing to any loan
hereunder. Any spousal consent given pursuant to this Section must
acknowledge the effect of the loan and must be witnessed by a Plan
representative or a notary public. Such spousal consent shall be
binding with respect to the consenting spouse and any subsequent
spouse with respect to the loan. A new spousal consent shall be
required if the Participant's Account is used for security in any
renegotiation, extension, renewal, or other revision of the loan.
11.2 REDUCTION OF ACCOUNT UPON DISTRIBUTION
Notwithstanding any other provision of the Plan, the amount of a
Participant's Account that is distributable to the Participant or his
Beneficiary under Article XIV shall be reduced by the portion of his
vested interest that is held by the Plan as security for any loan
outstanding to the Participant, provided that the reduction is used to
repay the loan. If distribution is made because of the Participant's
death prior to the commencement of distribution of his Account and
less than 100 percent of the Participant's vested interest in his
Account (determined without regard to the preceding sentence) is
payable to a particular Beneficiary, then the balance of the
Participant's vested interest in his Account shall be adjusted by
reducing the vested account balance by the amount of the security used
to repay the loan, as provided in the preceding sentence, prior to
determining the amount of the benefit payable to such Beneficiary.
11.3 REQUIREMENTS TO PREVENT A TAXABLE DISTRIBUTION
Notwithstanding any other provision of the Plan to the contrary, the
following terms and conditions shall apply to any loan made to a
Participant under this Article:
35
(a) The interest rate on any loan to a Participant shall be a
reasonable interest rate commensurate with current interest
rates charged for loans made under similar circumstances by
persons in the business of lending money.
(b) The amount of any loan to a Participant (when added to the
outstanding balance of all other loans to the Participant from
the Plan or any other plan maintained by an Employer or a
Related Company) shall not exceed the lesser of:
(i) $50,000, reduced by the aggregate amount of any plan
loan payments made by the Participant to the Plan or any
other plan maintained by an Employer or a Related
Company during the 12-consecutive-month period preceding
the date a loan is made hereunder; or
(ii) 50 percent of the vested portions of the Participant's
Account and his vested interest under all other plans
maintained by an Employer or a Related Company.
(c) The term of any loan to a Participant shall be no greater than
five years, except in the case of a loan used to acquire any
dwelling unit which within a reasonable period of time is to be
used (determined at the time the loan is made) as a principal
residence of the Participant, in which case the maximum term
shall be established by the Administrator in a uniform and
nondiscriminatory manner.
(d) Except as otherwise permitted under Treasury regulations,
substantially level amortization shall be required over the
term of the loan with payments made not less frequently than
quarterly.
11.4 ADMINISTRATION OF LOAN INVESTMENT FUND
Upon issuance of a loan to a Participant, the Administrator shall
direct the Trustee to transfer an amount equal to the loan amount from
the Investment Funds in which it is invested, as directed by the
Administrator, to the loan Investment Fund established in the
Participant's name. Any loan approved by the Administrator shall be
made to the Participant out of the Participant's loan Investment Fund.
All principal and interest paid by the Participant on a loan made
under this Article shall be deposited to his Account and shall be
allocated upon receipt among the Investment Funds in accordance with
the Participant's currently effective investment election. The
balance of the Participant's loan Investment Fund shall be decreased
by the amount of principal payments and the loan Investment Fund shall
be terminated when the loan has been repaid in full.
36
11.5 DEFAULT
If a Participant fails to make or cause to be made, any payment
required under the terms of the loan within 90 days following the date
on which such payment shall become due or there is an outstanding
principal balance existing on a loan after the last scheduled
repayment date, the Administrator shall direct the Trustee to declare
the loan to be in default, and the entire unpaid balance of such loan,
together with accrued interest, shall be immediately due and payable
and shall be treated as a "deemed distribution" in accordance with
regulations issued under Section 72(p) of the Code. In any such
event, if such balance and interest thereon is not then paid, the
Trustee shall charge the Account of the borrower with the amount of
such balance and interest as of the earliest date a distribution may
be made from the Plan to the borrower without adversely affecting the
tax qualification of the Plan or of the cash or deferred arrangement.
11.6 LOANS GRANTED PRIOR TO AMENDMENT
Notwithstanding any other provision of this Article to the contrary,
any loan made under the provisions of the Plan as in effect prior to
this amendment and restatement shall remain outstanding until repaid
in accordance with its terms or the otherwise applicable Plan
provisions.
ARTICLE XII
WITHDRAWALS WHILE EMPLOYED
12.1 WITHDRAWALS OF EMPLOYEE CONTRIBUTIONS-NON-DEDUCTIBLE
A Participant who is employed by an Employer or a Related Company may,
at any time, elect, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
Employee Contributions-Non-Deductible Sub-Account, exclusive of any
earnings credited to such Sub-Account.
12.2 Withdrawals of Salary Deferrals Transferred from the Rubbermaid
Office Products Inc. 401(k) Savings and Investment Plan
A Participant who is employed by an Employer or a Related Company and
who has attained age 59-1/2 may elect, subject to the limitations and
conditions prescribed in this Article, to make a cash withdrawal from
that portion of his Salary Deferral Contributions Sub-Account
attributable to salary deferral contributions transferred to the Plan
from the Rubbermaid Office Products Inc. 401(k) Savings and Investment
Plan.
37
12.3 LIMITATIONS ON WITHDRAWALS
Withdrawals made pursuant to this Article shall be subject to the
following conditions and limitations:
A Participant must file a withdrawal application with the
Administrator such number of days prior to the date as of which
it is to be effective as the Administrator shall prescribe.
The minimum total withdrawal that a Participant may make shall
be an amount equal to the lesser of $100.00 or 100 percent of
the Participant's withdrawable interest in his Account.
Withdrawals may be made effective as of the date or dates
prescribed by the Administrator.
12.4 ORDER OF WITHDRAWAL FROM A PARTICIPANT'S SUB-ACCOUNTS
Distribution of a withdrawal amount shall be made from a Participant's
Sub-Accounts, to the extent necessary, in the order prescribed by the
Administrator, which order shall be uniform with respect to all
Participants and non-discriminatory. If the Sub-Account from which a
Participant is receiving a withdrawal is invested in more than one
Investment Fund, the withdrawal shall be charged against the
Investment Funds as directed by the Administrator.
ARTICLE XIII
TREATMENT OF NON-VESTED AMOUNTS
FOLLOWING TERMINATION DATE
13.1 NOTICE OF TERMINATION DATE
Notice of a Participant's Termination Date shall be given by the
Administrator to the Trustee.
13.2 SEPARATE ACCOUNTING FOR NON-VESTED AMOUNTS
If as of a Participant's Termination Date the Participant's vested
interest in his Employer Regular Contributions Sub-Account is less
than 100 percent, that portion of his Employer Regular Contributions
Sub-Account that is not vested shall be accounted for separately from
the vested portion and shall be disposed of as provided in the
following Section.
38
13.3 DISPOSITION OF NON-VESTED AMOUNTS
That portion of a Participant's Employer Regular Contributions
Sub-Account that is not vested upon the occurrence of his Termination
Date shall be forfeited and his Account closed as of the earlier of
(i) the last day of the Plan Year in which the Participant's
Termination Date occurs, or (ii) the date on which the Participant
receives any distribution from his vested interest in his Account.
Whenever the non-vested portion of a Participant's Employer Regular
Contributions Sub-Account is forfeited under the provisions of the
Plan with respect to a Plan Year, the amount of such forfeiture, as of
the last day of the Plan Year, shall be applied against the Employer
Regular Contribution obligations for the Plan Year of the Employer for
which the Participant last performed services as an Employee.
Notwithstanding the foregoing, however, should the amount of all such
forfeitures for any Plan Year with respect to any Employer exceed the
amount of such Employer's Employer Regular Contribution obligation for
the Plan Year, the excess amount of such forfeitures shall be held
unallocated in a suspense account established with respect to the
Employer and shall for all Plan purposes be applied against the
Employer's Employer Regular Contribution obligations for the following
Plan Year.
13.4 RECREDITING OF FORFEITED AMOUNTS
A former Participant who forfeited the non-vested portion of his
Employer Regular Contributions Sub-Account in accordance with the
provisions of this Article and who is re-employed by an Employer or a
Related Company shall have such forfeited amounts recredited to a new
Account in his name, with adjustment for gains or losses experienced
by the Investment Funds in which the Participant's Account was
invested prior to the forfeiture during the period beginning on the
date such amounts were forfeited and ending on the earlier of (i) the
date such amounts are recredited or (ii) the date the Participant
received, or is deemed to have received, a distribution from his
vested interest in his Participant's Account, if:
(a) he returns to employment with an Employer or a Related Company
before he incurs five consecutive Breaks in Service commencing
after the later of his Termination Date or the date he received
distribution of his vested interest in his Account;
(b) he resumes employment covered under the Plan before the earlier
of (i) the end of the five-year period beginning on the date he
is re-employed or (ii) the date he incurs five consecutive
Breaks in Service commencing after the later of his Termination
Date or the date he received distribution of his vested
interest in his Account; and
39
(c) if he received distribution of his vested interest in his
Account, he repays to the Plan the full amount of such
distribution before the earlier of (i) the end of the five-year
period beginning on the date he is re-employed or (ii) the date
he incurs five consecutive Breaks in Service commencing after
the date he received distribution of his vested interest in his
Account.
Funds needed in any Plan Year to recredit the Account of a Participant
with the amounts of prior forfeitures in accordance with the preceding
sentence shall come first from forfeitures that arise during such Plan
Year, and then from Trust income earned in such Plan Year, with each
Trust Fund being charged with the amount of such income
proportionately, unless his Employer chooses to make an additional
Employer contribution, and shall finally be provided by his Employer
by way of a separate Employer contribution.
ARTICLE XIV
DISTRIBUTIONS
14.1 DISTRIBUTIONS TO PARTICIPANTS
A Participant whose Termination Date occurs shall receive distribution
of his vested interest in his Account in the form provided under
Article XV or Addendum A, as applicable, beginning as soon as
reasonably practicable following his Termination Date or the date his
application for distribution is filed with the Administrator, if
later. In addition, a Participant who continues in employment with an
Employer or a Related Company after his Normal Retirement Date may
elect to receive distribution of all or any portion of his Account in
the form provided under Article XV or Addendum A, as applicable, at
any time following his Normal Retirement Date.
14.2 DISTRIBUTIONS TO BENEFICIARIES
If a Participant dies prior to the date distribution of his vested
interest in his Account begins under this Article, his Beneficiary
shall receive distribution of the Participant's vested interest in his
Account in the form provided under Article XV or Addendum A, as
applicable, beginning as soon as reasonably practicable following the
date the Beneficiary's application for distribution is filed with the
Administrator. Unless distribution is to be made over the life or
over a period certain not greater than the life expectancy of the
Beneficiary, distribution of the Participant's entire vested interest
shall be made to the Beneficiary no later than the end of the fifth
calendar year beginning after the Participant's death. If
distribution is to be made over the life or over a period certain no
40
greater than the life expectancy of the Beneficiary, distribution
shall commence no later than:
(a) If the Beneficiary is not the Participant's spouse, the end of
the first calendar year beginning after the Participant's
death; or
(b) If the Beneficiary is the Participant's spouse, the later of
(i) the end of the first calendar year beginning after the
Participant's death or (ii) the end of the calendar year in
which the Participant would have attained age 70-1/2.
If distribution is to be made to a Participant's spouse, it shall be
made available within a reasonable period of time after the
Participant's death that is no less favorable than the period of time
applicable to other distributions. If a Participant dies after the
date distribution of his vested interest in his Account begins under
this Article, but before his entire vested interest in his Account is
distributed, his Beneficiary shall receive distribution of the
remainder of the Participant's vested interest in his Account
beginning as soon as reasonably practicable following the
Participant's date of death in a form that provides for distribution
at least as rapidly as under the form in which the Participant was
receiving distribution. Notwithstanding the provisions of this
Section, distribution may also be made to a Participant's Beneficiary
in accordance with a valid election made by the Participant pursuant
to Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act
of 1982.
14.3 CASH OUTS AND PARTICIPANT CONSENT
Notwithstanding any other provision of the Plan to the contrary, if a
Participant's vested interest in his Account does not exceed $5,000,
distribution of such vested interest shall be made to the Participant
in a single sum payment as soon as reasonably practicable following
his Termination Date. If a Participant's vested interest in his
Account is $0, he shall be deemed to have received distribution of
such vested interest as of his Termination Date.
If a Participant's vested interest in his Account exceeds $5,000,
distribution shall not commence to such Participant prior to his
Normal Retirement Date without the Participant's written consent and,
with respect to distribution of the portion of a Participant's Account
that is subject to the qualified joint and survivor annuity rules
described in Addendum A, the written consent of his spouse if
distribution is to be made in a form other than a qualified joint and
survivor annuity. If at the time of a distribution or deemed
distribution to a Participant from his Account, the Participant's
vested interest in his Account exceeded $5,000, then for purposes of
41
this Section, the Participant's vested interest in his Account on any
subsequent date shall be deemed to exceed $5,000.
14.4 REQUIRED COMMENCEMENT OF DISTRIBUTION
Notwithstanding any other provision of the Plan to the contrary,
distribution of a Participant's vested interest in his Account shall
commence to the Participant no later than the earlier of:
(a) unless the Participant elects a later date, 60 days after the
close of the Plan Year in which (i) the Participant's Normal
Retirement Date occurs, (ii) the 10th anniversary of the year
in which he commenced participation in the Plan occurs, or
(iii) his Termination Date occurs, whichever is latest; or
(b) his required beginning date.
Distributions required to commence under this Section shall be made in
the form provided under Article XV or Addendum A, as applicable, and
in accordance with Section 401(a)(9) of the Code and regulations
issued thereunder, including the minimum distribution incidental
benefit requirements. For purposes of this Section, a Participant's
"required beginning date" means the April 1 of the calendar year
following the calendar year in which occurs the later of the
Participant's (i) attainment of age 70-1/2 or (ii) the Participant's
Settlement Date; provided, however, that clause (ii) shall not apply
to a Participant who is a five percent owner, as defined in Section
416(i) of the Code with respect to the Plan Year ending with or within
the calendar year in which the Participants attains age 70-1/2. The
required beginning date of a Participant who is a five percent owner
hereunder shall not be redetermined if the Participant ceases to be a
five percent owner with respect to any subsequent Plan Year.
Notwithstanding the provisions of this Section, distribution may also
be made to a Participant in accordance with a valid election made by
the Participant pursuant to Section 242(b)(2) of the Tax Equity and
Fiscal Responsibility Act of 1982.
14.5 RE-EMPLOYMENT OF A PARTICIPANT
If a Participant whose Termination Date has occurred is re-employed by
an Employer or a Related Company, he shall lose his right to any
distribution or further distributions from the Trust arising from his
prior Termination Date and his interest in the Trust shall thereafter
be treated in the same manner as that of any other Participant whose
Termination Date has not occurred.
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14.6 RESTRICTIONS ON ALIENATION
Except as provided in Section 401(a)(13)(B) of the Code (relating to
qualified domestic relations orders), Sections 401(a)(13)(C) and (D)
of the Code (relating to offsets ordered or required under a criminal
conviction involving the Plan, a civil judgment in connection with a
violation or alleged violation of fiduciary responsibilities under
ERISA, or a settlement agreement between the Participant and the
Department of Labor in connection with a violation or alleged
violation of fiduciary responsibilities under ERISA), Section
1.401(a)-13(b)(2) of the Treasury Regulations (relating to Federal tax
levies), or as otherwise required by law, no benefit under the Plan at
any time shall be subject in any manner to anticipation, alienation,
assignment (either at law or in equity), encumbrance, garnishment,
levy, execution, or other legal or equitable process; and no person
shall have the power in any manner to anticipate, transfer, assign
(either at law or in equity), alienate or subject to attachment,
garnishment, levy, execution, or other legal or equitable process, or
in any way encumber his benefits under the Plan, or any part thereof,
and any attempt to do so shall be void.
14.7 FACILITY OF PAYMENT
If the Administrator finds that any individual to whom an amount is
payable hereunder is incapable of attending to his financial affairs
because of any mental or physical condition, including the infirmities
of advanced age, such amount (unless prior claim therefor shall have
been made by a duly qualified guardian or other legal representative)
may, in the discretion of the Administrator, be paid to another person
for the use or benefit of the individual found incapable of attending
to his financial affairs or in satisfaction of legal obligations
incurred by or on behalf of such individual. The Trustee shall make
such payment only upon receipt of written instructions to such effect
from the Administrator. Any such payment shall be charged to the
Account from which any such payment would otherwise have been paid to
the individual found incapable of attending to his financial affairs
and shall be a complete discharge of any liability therefor under the
Plan.
14.8 INABILITY TO LOCATE PAYEE
If any benefit becomes payable to any person, or to the executor or
administrator of any deceased person, and if that person or his
executor or administrator does not present himself to the
Administrator within a reasonable period after the Administrator mails
written notice of his eligibility to receive a distribution hereunder
to his last known address and makes such other diligent effort to
locate the person as the Administrator determines, that benefit may be
43
forfeited. However, if the payee later files a claim for that
benefit, the benefit will be restored.
14.9 DISTRIBUTION PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS
Notwithstanding any other provision of the Plan to the contrary, if a
qualified domestic relations order so provides, distribution may be
made to an alternate payee pursuant to a qualified domestic relations
order, as defined in Section 414(p) of the Code, regardless of whether
the Participant's Termination Date has occurred or whether the
Participant is otherwise entitled to receive a distribution under the
Plan.
ARTICLE XV
FORM OF PAYMENT
15.1 APPLICABILITY
The provisions of this Article apply to a Participant's Account,
except that portion, if any, of the Participant's Account that is
attributable to the Participant's account in the Rubbermaid Profit
Sharing Plan that was merged into the Plan effective December 31,
1995. The provisions of Addendum A apply to that portion of a
Participant's Account that is attributable to the Participant's
account in the Rubbermaid Profit Sharing Plan.
15.2 NORMAL FORM OF PAYMENT
Unless the Participant, or his Beneficiary, if the Participant has
died, elects the optional form of payment, distribution shall be made
to the Participant, or his Beneficiary, as the case may be, in a
single sum payment.
Distribution of that portion, if any, of a Participant's Account that
is attributable to amounts transferred to the Plan from the GOTT
Corporation Employee Stock Ownership Plan under either the normal or
optional forms of payment shall be made in cash or in the form of
Employer stock, as elected by the Participant.
15.3 OPTIONAL FORM OF PAYMENT
A Participant may elect to receive distribution of all or a portion of
his Account in a series of installments over a period not exceeding
the life expectancy of the Participant. If a Participant has died,
his Beneficiary may elect to receive distribution of all or a portion
of his Account in a series of installments over a period not exceeding
(i) the end of the fifth calendar year beginning after the
44
Participant's death, if the Beneficiary is not the Participant's
spouse or (ii) the life expectancy of the Beneficiary, if the
Beneficiary is the Participant's spouse. Each installment shall be
equal in amount except as necessary to adjust for any changes in the
value of the Participant's Account. The determination of life
expectancies shall be made on the basis of the expected return
multiples in Table V and VI of Section 1.72-9 of the Treasury
regulations and shall be calculated once at the time installment
payments begin.
Notwithstanding the foregoing, a Participant may elect to receive
distribution of his Account for periods prior to the April 1 following
the close of the calendar year in which he attains age 70-1/2 in a
series of installments or non-periodic payments made pursuant to any
formula elected by the Participant, without regard to the life
expectancies of the Participant and his Beneficiary.
15.4 CHANGE OF OPTION ELECTION
A Participant or Beneficiary who has elected the optional form of
payment may revoke or change his election at any time by filing with
the Administrator an election in the form prescribed by the
Administrator.
15.5 Direct Rollover
Notwithstanding any other provision of the Plan to the contrary, in
lieu of receiving distribution in the form of payment provided under
this Article, a "qualified distributee" may elect, in accordance with
rules prescribed by the Administrator, to have any portion or all of a
distribution that is an "eligible rollover distribution" paid directly
by the Plan to the "eligible retirement plan" designated by the
"qualified distributee"; provided, however, that this provision shall
not apply if the total distribution is less than $200 and that a
"qualified distributee" may not elect this provision with respect to a
portion of a distribution that is less than $500. Any such payment by
the Plan to another "eligible retirement plan" shall be a direct
rollover. For purposes of this Section, the following terms have the
following meanings:
(a) An "eligible retirement plan" means an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code that
accepts rollovers; provided, however, that, in the case of a
direct rollover by a surviving spouse, an eligible retirement
plan does not include a qualified trust described in Section
401(a) of the Code.
45
(b) An "eligible rollover distribution" means any distribution of
all or any portion of the balance of a Participant's Account;
provided, however, that an eligible rollover distribution does
not include: any distribution that is one of a series of
substantially equal periodic payments made not less frequently
than annually for the life or life expectancy of the qualified
distributee or the joint lives or joint life expectancies of
the qualified distributee and the qualified distributee's
designated beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion
of any distribution that consists of the Participant's Employee
Contributions.
(c) A "qualified distributee" means a Participant, his surviving
spouse, or his spouse or former spouse who is an alternate
payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code.
15.6 NOTICE REGARDING FORMS OF PAYMENT
Within the 60 day period ending 30 days before the date as of which
distribution of a Participant's Account commences, the Administrator
shall provide the Participant with a written explanation of his right
to defer distribution until his Normal Retirement Date, or such later
date as may be provided in the Plan, his right to make a direct
rollover, and the forms of payment available under the Plan.
Distribution of the Participant's Account may commence less than 30
days after such notice is provided to the Participant if (i) the
Administrator clearly informs the Participant of his right to
consider, for a period of at least 30 days following his receipt of
the notice, his election of whether or not to make a direct rollover
or to receive a distribution prior to his Normal Retirement Date and
his election of a form of payment and (ii) the Participant, after
receiving the notice, affirmatively elects an early distribution.
15.7 RE-EMPLOYMENT
If a Participant is re-employed by an Employer or a Related Company
prior to receiving distribution of the entire balance of his vested
interest in his Account, his prior election of a form of payment
hereunder shall become ineffective.
15.8 SECTION 242(b)(2) ELECTIONS
Notwithstanding any other provisions of this Article, distribution on
behalf of a Participant, including a five-percent owner, may be made
pursuant to an election under Section 242(b)(2) of the Tax Equity and
46
Fiscal Responsibility Act of 1982 and in accordance with all of the
following requirements:
(a) The distribution is one which would not have disqualified the
Trust under Section 401(a)(9) of the Code as in effect prior to
amendment by the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of distribution
elected by the Participant whose interest in the Trust is being
distributed or, if the Participant is deceased, by a
Beneficiary of such Participant.
(c) Such election was in writing, was signed by the Participant or
the Beneficiary, and was made before January 1, 1984.
(d) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(e) The method of distribution elected by the Participant or the
Beneficiary specifies the time at which distribution will
commence, the period over which distribution will be made, and
in the case of any distribution upon the Participant's death,
the Beneficiaries of the Participant listed in order of
priority.
A distribution upon death shall not be made under this Section unless
the information in the election contains the required information
described above with respect to the distributions to be made upon the
death of the Participant. For any distribution which commences before
January 1, 1984, but continues after December 31, 1983, the
Participant or the Beneficiary to whom such distribution is being made
will be presumed to have designated the method of distribution under
which the distribution is being made, if this method of distribution
was specified in writing and the distribution satisfies the
requirements in paragraphs (a) and (e) of this Section. If an
election is revoked, any subsequent distribution will be in accordance
with the other provisions of the Plan. Any changes in the election
will be considered to be a revocation of the election. However, the
mere substitution or addition of another Beneficiary (one not
designated as a Beneficiary in the election), under the election will
not be considered to be a revocation of the election, so long as such
substitution or addition does not alter the period over which
distributions are to be made under the election directly, or
indirectly (for example, by altering the relevant measuring life).
47
ARTICLE XVI
BENEFICIARIES
16.1 APPLICABILITY
The provisions of this Article apply to a Participant's Account,
except that portion, if any, of the Participant's Account that is
attributable to the Participant's account in the Rubbermaid Profit
Sharing Plan that was merged into the Plan effective December 31,
1995. The provisions of Addendum A apply to that portion of a
Participant's Account that is attributable to the Participant's
account in the Rubbermaid Profit Sharing Plan.
16.2 DESIGNATION OF BENEFICIARY
A married Participant's Beneficiary shall be his spouse, unless the
Participant designates a person or persons other than his spouse as
Beneficiary with his spouse's written consent; provided, however, that
such written spousal consent shall not be required if the Participant
is not married to such spouse on the date as of which distribution of
the Participant's Account commences. A Participant may designate a
Beneficiary on the form prescribed by the Administrator. If no
Beneficiary has been designated pursuant to the provisions of this
Section, or if no Beneficiary survives the Participant and he has no
surviving spouse, then the Beneficiary under the Plan shall be the
Participant's surviving children or, if none, the Participant's
surviving parents or, if none, the Participant's surviving brothers
and sisters or, if none, the Participant's executors and
administrators. If a Beneficiary dies after becoming entitled to
receive a distribution under the Plan but before distribution is made
to him in full, and if no other Beneficiary has been designated to
receive the balance of the distribution in that event, the estate of
the deceased Beneficiary shall be the Beneficiary as to the balance of
the distribution.
16.3 SPOUSAL CONSENT REQUIREMENTS
Any written spousal consent given pursuant to this Article must
acknowledge the effect of the action taken and must be witnessed by a
Plan representative or a notary public. In addition, the spouse's
written consent must either (i) specify any non-spouse Beneficiary
designated by the Participant and that such Beneficiary may not be
changed without written spousal consent or (ii) acknowledge that the
spouse has the right to limit consent to a specific Beneficiary, but
permit the Participant to change the designated Beneficiary without
the spouse's further consent. A Participant's spouse will be deemed
to have given written consent to the Participant's designation of
48
Beneficiary if the Participant establishes to the satisfaction of a
Plan representative that such consent cannot be obtained because the
spouse cannot be located or because of other circumstances set forth
in Section 401(a)(11) of the Code and regulations issued thereunder.
Any written consent given or deemed to have been given by a
Participant's spouse hereunder shall be valid only with respect to the
spouse who signs the consent.
ARTICLE XVII
ADMINISTRATION
17.1 AUTHORITY OF THE SPONSOR
The Sponsor, which shall be the administrator for purposes of ERISA
and the plan administrator for purposes of the Code, shall be
responsible for the administration of the Plan and, in addition to the
powers and authorities expressly conferred upon it in the Plan, shall
have all such powers and authorities as may be necessary to carry out
the provisions of the Plan, including the power and authority to
interpret and construe the provisions of the Plan, to make benefit
determinations, and to resolve any disputes which arise under the
Plan. The Sponsor may employ such attorneys, agents, and accountants
as it may deem necessary or advisable to assist in carrying out its
duties hereunder. The Sponsor shall be a "named fiduciary" as that
term is defined in Section 402(a)(2) of ERISA. The Sponsor may:
(a) allocate any of the powers, authority, or responsibilities for
the operation and administration of the Plan (other than
trustee responsibilities as defined in Section 405(c)(3) of
ERISA) among named fiduciaries; and
(b) designate a person or persons other than a named fiduciary to
carry out any of such powers, authority, or responsibilities;
except that no allocation by the Sponsor of, or designation by the
Sponsor with respect to, any of such powers, authority, or
responsibilities to another named fiduciary or a person other than a
named fiduciary shall become effective unless such allocation or
designation shall first be accepted by such named fiduciary or other
person in a writing signed by it and delivered to the Sponsor.
17.2 ACTION OF THE SPONSOR
Any act authorized, permitted, or required to be taken under the Plan
by the Sponsor and which has not been delegated in accordance with
Section 17.1, may be taken by a majority of the members of the board
of directors of the Sponsor, either by vote at a meeting, or in
49
writing without a meeting, or by the employee or employees of the
Sponsor designated by the board of directors to carry out such acts on
behalf of the Sponsor. All notices, advice, directions,
certifications, approvals, and instructions required or authorized to
be given by the Sponsor as under the Plan shall be in writing and
signed by either (i) a majority of the members of the board of
directors of the Sponsor or by such member or members as may be
designated by an instrument in writing, signed by all the members
thereof, as having authority to execute such documents on its behalf,
or (ii) the employee or employees authorized to act for the Sponsor in
accordance with the provisions of this Section.
17.3 CLAIMS REVIEW PROCEDURE
Whenever a claim for benefits under the Plan filed by any person
(herein referred to as the "Claimant") is denied, whether in whole or
in part, the Sponsor shall transmit a written notice of such decision
to the Claimant within 90 days of the date the claim was filed or, if
special circumstances require an extension, within 180 days of such
date, which notice shall be written in a manner calculated to be
understood by the Claimant and shall contain a statement of (i) the
specific reasons for the denial of the claim, (ii) specific reference
to pertinent Plan provisions on which the denial is based, and (iii) a
description of any additional material or information necessary for
the Claimant to perfect the claim and an explanation of why such
information is necessary.
The notice shall also include a statement advising the Claimant that,
within 60 days of the date on which he receives such notice, he may
obtain review of such decision in accordance with the procedures
hereinafter set forth. Within such 60-day period, the Claimant or his
authorized representative may request that the claim denial be
reviewed by filing with the Sponsor a written request therefor, which
request shall contain the following information:
(a) the date on which the Claimant's request was filed with the
Sponsor; provided, however, that the date on which the
Claimant's request for review was in fact filed with the
Sponsor shall control in the event that the date of the actual
filing is later than the date stated by the Claimant pursuant
to this paragraph;
(b) the specific portions of the denial of his claim which the
Claimant requests the Sponsor to review;
(c) a statement by the Claimant setting forth the basis upon which
he believes the Sponsor should reverse the previous denial of
his claim for benefits and accept his claim as made; and
50
(d) any written material (offered as exhibits) which the Claimant
desires the Sponsor to examine in its consideration of his
position as stated pursuant to paragraph (c) of this Section.
Within 60 days of the date determined pursuant to paragraph (a) of
this Section or, if special circumstances require an extension, within
120 days of such date, the Sponsor shall conduct a full and fair
review of the decision denying the Claimant's claim for benefits and
shall render its written decision on review to the Claimant. The
Sponsor's decision on review shall be written in a manner calculated
to be understood by the Claimant and shall specify the reasons and
Plan provisions upon which the Sponsor's decision was based.
17.4 QUALIFIED DOMESTIC RELATIONS ORDERS
The Sponsor shall establish reasonable procedures to determine the
status of domestic relations orders and to administer distributions
under domestic relations orders which are deemed to be qualified
orders. Such procedures shall be in writing and shall comply with the
provisions of Section 414(p) of the Code and regulations issued
thereunder.
17.5 INDEMNIFICATION
In addition to whatever rights of indemnification the members of the
board of directors of the Sponsor or any employee or employees of the
Sponsor to whom any power, authority, or responsibility is delegated
pursuant to Section 17.2, may be entitled under the articles of
incorporation or regulations of the Sponsor, under any provision of
law, or under any other agreement, the Sponsor shall satisfy any
liability actually and reasonably incurred by any such person or
persons, including expenses, attorneys' fees, judgments, fines, and
amounts paid in settlement (other than amounts paid in settlement not
approved by the Sponsor), in connection with any threatened, pending
or completed action, suit, or proceeding which is related to the
exercising or failure to exercise by such person or persons of any of
the powers, authority, responsibilities, or discretion as provided
under the Plan, or reasonably believed by such person or persons to be
provided hereunder, and any action taken by such person or persons in
connection therewith, unless the same is judicially determined to be
the result of such person or persons' gross negligence or willful
misconduct.
17.6 ACTIONS BINDING
Subject to the provisions of Section 17.3, any action taken by the
Sponsor which is authorized, permitted, or required under the Plan
shall be final and binding upon the Employers, the Trustee, all
51
persons who have or who claim an interest under the Plan, and all
third parties dealing with the Employers or the Trustee.
ARTICLE XVIII
AMENDMENT AND TERMINATION
18.1 AMENDMENT
Subject to the provisions of Section 18.2, the Sponsor may at any time
and from time to time, by action of its board of directors, or such
Benefit Plans Committee as is authorized by the Sponsor's board of
directors, amend the Plan, either prospectively or retroactively. Any
such amendment shall be by written instrument executed by the Sponsor.
18.2 LIMITATION ON AMENDMENT
The Sponsor shall make no amendment to the Plan which shall decrease
the accrued benefit of any Participant or Beneficiary, except that
nothing contained herein shall restrict the right to amend the
provisions of the Plan relating to the administration of the Plan and
Trust. Moreover, no such amendment shall be made hereunder which
shall permit any part of the Trust to revert to an Employer or any
Related Company or be used or be diverted to purposes other than the
exclusive benefit of Participants and Beneficiaries.
18.3 TERMINATION
The Sponsor reserves the right, by action of its board of directors,
to terminate the Plan as to all Employers at any time (the effective
date of such termination being hereinafter referred to as the
"termination date"). Upon any such termination of the Plan, the
following actions shall be taken for the benefit of Participants and
Beneficiaries:
(a) As of the termination date, each Investment Fund shall be
valued and all Accounts and Sub-Accounts shall be adjusted in
the manner provided in Article X, with any unallocated
contributions or forfeitures being allocated as of the
termination date in the manner otherwise provided in the Plan.
The termination date shall become a Valuation Date for purposes
of Article X. In determining the net worth of the Trust, there
shall be included as a liability such amounts as shall be
necessary to pay all expenses in connection with the
termination of the Trust and the liquidation and distribution
of the property of the Trust, as well as other expenses,
whether or not accrued, and shall include as an asset all
accrued income.
52
(b) All Accounts shall then be disposed of to or for the benefit of
each Participant or Beneficiary in accordance with the
provisions of Article XIV as if the termination date were his
Termination Date; provided, however, that notwithstanding the
provisions of Article XIV, if the Plan does not offer an
annuity option and if neither his Employer nor a Related
Company establishes or maintains another defined contribution
plan (other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code), the Participant's written
consent to the commencement of distribution shall not be
required regardless of the value of the vested portions of his
Account.
(c) Notwithstanding the provisions of paragraph (b) of this
Section, no distribution shall be made to a Participant of any
portion of the balance of his Salary Deferral Contributions
Sub-Account prior to his separation from service (other than a
distribution required in accordance with Section 401(a)(9) of
the Code) unless (i) neither his Employer nor a Related Company
establishes or maintains another defined contribution plan
(other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code, a tax credit employee stock
ownership plan as defined in Section 409 of the Code, or a
simplified employee pension as defined in Section 408(k) of the
Code) either at the time the Plan is terminated or at any time
during the period ending 12 months after distribution of all
assets from the Plan; provided, however, that this provision
shall not apply if fewer than two percent of the Eligible
Employees under the Plan were eligible to participate at any
time in such other defined contribution plan during the 24-
month period beginning 12 months before the Plan termination,
and (ii) the distribution the Participant receives is a "lump
sum distribution" as defined in Section 402(e)(4) of the Code,
without regard to clauses (i), (ii), (iii), and (iv) of
sub-paragraph (A), sub-paragraph (B), or sub-paragraph (H)
thereof.
Notwithstanding anything to the contrary contained in the Plan, upon
any such Plan termination, the vested interest of each Participant and
Beneficiary in his Employer Regular Contributions Sub-Account shall be
100 percent; and, if there is a partial termination of the Plan, the
vested interest of each Participant and Beneficiary who is affected by
the partial termination in his Employer Regular Contributions
Sub-Account shall be 100 percent. For purposes of the preceding
sentence only, the Plan shall be deemed to terminate automatically if
there shall be a complete discontinuance of contributions hereunder by
all Employers.
53
18.4 REORGANIZATION
The merger, consolidation, or liquidation of any Employer with or into
any other Employer or a Related Company shall not constitute a
termination of the Plan as to such Employer. If an Employer disposes
of substantially all of the assets used by the Employer in a trade or
business or disposes of a subsidiary and in connection therewith one
or more Participants terminates employment but continues in employment
with the purchaser of the assets or with such subsidiary, no
distribution from the Plan shall be made to any such Participant prior
to his separation from service (other than a distribution required in
accordance with Section 401(a)(9) of the Code), except that a
distribution shall be permitted to be made in such a case, subject to
the Participant's consent (to the extent required by law), if (i) the
distribution would constitute a "lump sum distribution" as defined in
section 402(e)(4) of the Code, without regard to clauses (i), (ii),
(iii), or (iv) of sub-paragraph (A), sub-paragraph (B), or
sub-paragraph (H) thereof, (ii) the Employer continues to maintain the
Plan after the disposition, (iii) the purchaser does not maintain the
Plan after the disposition, and (iv) the distribution is made by the
end of the second calendar year after the calendar year in which the
disposition occurred.
18.5 WITHDRAWAL OF AN EMPLOYER
An Employer other than the Sponsor may withdraw from the Plan at any
time upon notice in writing to the Administrator (the effective date
of such withdrawal being hereinafter referred to as the "withdrawal
date"), and shall thereupon cease to be an Employer for all purposes
of the Plan. An Employer shall be deemed automatically to withdraw
from the Plan in the event of its complete discontinuance of
contributions, or, subject to Section 18.4 and unless the Sponsor
otherwise directs, it ceases to be a Related Company of the Sponsor or
any other Employer. Upon the withdrawal of an Employer, the
withdrawing Employer shall determine whether a partial termination has
occurred with respect to its Employees. In the event that the
withdrawing Employer determines a partial termination has occurred,
the action specified in Section 18.3 shall be taken as of the
withdrawal date, as on a termination of the Plan, but with respect
only to Participants who are employed solely by the withdrawing
Employer, and who, upon such withdrawal, are neither transferred to
nor continued in employment with any other Employer or a Related
Company. The interest of any Participant employed by the withdrawing
Employer who is transferred to or continues in employment with any
other Employer or a Related Company, and the interest of any
Participant employed solely by an Employer or a Related Company other
than the withdrawing Employer, shall remain unaffected by such
withdrawal; no adjustment to his Accounts shall be made by reason of
54
the withdrawal; and he shall continue as a Participant hereunder
subject to the remaining provisions of the Plan.
ARTICLE XIX
ADOPTION BY OTHER ENTITIES
19.1 ADOPTION BY RELATED COMPANIES
A Related Company that is not an Employer may, with the consent of the
Sponsor, adopt the Plan with respect to the entire Related Company or
any plant, division, or other business operation of the Related
Company and become an Employer hereunder by causing an appropriate
written instrument evidencing such adoption to be executed in
accordance with the requirements of its organizational authority. Any
such instrument shall specify the effective date of the adoption and
the plant, division, or other business operation for which coverage is
adopted, if appropriate and, with the consent of the Sponsor, any
overriding provisions as described in Section 19.3.
19.2 EXTENSION OF COVERAGE
An Employer may, with the consent of the Sponsor, extend Plan coverage
to any plant, division, or other business operation that is not
already covered under the Plan by causing an appropriate written
instrument evidencing such extension to be executed in accordance with
the requirements of its organizational authority. Any such instrument
shall specify the effective date of the extension and the plant,
division, or other business operation to which coverage is extended,
and, with the consent of the Sponsor, any overriding provisions as
described in Section 19.3.
19.3 EFFECTIVE PLAN PROVISIONS
An Employer who adopts the Plan shall be bound by the provisions of
the Plan in effect at the time of the adoption and as subsequently in
effect because of any amendment to the Plan; provided, however, that
the Sponsor may add a schedule to the Plan setting forth special
overriding provisions applicable to the adoption of the Plan by such
Employer, or to the extension of coverage under the Plan to a plant,
division, or other business operation of such Employer, for separate
eligibility, contribution, life insurance, loan, in-service
withdrawal, distribution, and form of payment requirements with
respect to Employees of such Employer or to Employees at the plant,
division, or other business operation of such Employer to which
coverage under the Plan has been extended. Any such schedule shall
for all purposes constitute a part of the Plan.
55
ARTICLE XX
MISCELLANEOUS PROVISIONS
20.1 NO COMMITMENT AS TO EMPLOYMENT
Nothing contained herein shall be construed as a commitment or
agreement upon the part of any person to continue his employment with
an Employer or Related Company, or as a commitment on the part of any
Employer or Related Company to continue the employment, compensation,
or benefits of any person for any period.
20.2 BENEFITS
Nothing in the Plan nor the Trust Agreement shall be construed to
confer any right or claim upon any person, firm, or corporation other
than the Employers, the Trustee, Participants, and Beneficiaries.
20.3 NO GUARANTEES
The Employers, the Administrator, and the Trustee do not guarantee the
Trust from loss or depreciation, nor do they guarantee the payment of
any amount which may become due to any person hereunder.
20.4 EXPENSES
The expenses of administration of the Plan, including the expenses of
the Administrator and the fees of the Trustee, shall be paid from the
Trust. The manner in which such expenses and fees will be charged
against the Trust shall be determined by the Administrator.
20.5 PRECEDENT
Except as otherwise specifically provided, no action taken in
accordance with the Plan shall be construed or relied upon as a
precedent for similar action under similar circumstances.
20.6 DUTY TO FURNISH INFORMATION
The Employers, the Administrator, and the Trustee shall furnish to any
of the others any documents, reports, returns, statements, or other
information that the other reasonably deems necessary to perform its
duties hereunder or otherwise imposed by law.
56
20.7 WITHHOLDING
The Trustee shall withhold any tax which by any present or future law
is required to be withheld, and which the Administrator notifies the
Trustee in writing is to be so withheld, from any payment to any
Participant or Beneficiary hereunder.
20.8 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS
The Plan shall not be merged or consolidated with any other plan, nor
shall any of its assets or liabilities be transferred to another plan,
unless, immediately after such merger, consolidation, or transfer of
assets or liabilities, each Participant in the Plan would receive a
benefit under the Plan which is at least equal to the benefit he would
have received immediately prior to such merger, consolidation, or
transfer of assets or liabilities (assuming in each instance that the
Plan had then terminated).
20.9 BACK PAY AWARDS
The provisions of this Section shall apply only to an Employee or
former Employee who becomes entitled to back pay by an award or
agreement of an Employer without regard to mitigation of damages. If
a person to whom this Section applies was or would have become an
Eligible Employee after such back pay award or agreement has been
effected, and if any such person who had not previously elected to
make Salary Deferral Contributions pursuant to Section 4.1 shall
within 30 days of the date he receives notice of the provisions of
this Section make an election to make Salary Deferral Contributions in
accordance with such Section 4.1 (retroactive to any Enrollment Date
as of which he was or has become eligible to do so), then such
Participant may elect that any Salary Deferral Contributions not
previously made on his behalf but which, after application of the
foregoing provisions of this Section, would have been made under the
provisions of Article IV, shall be made out of the proceeds of such
back pay award or agreement. In addition, if any such Employee or
former Employee would have been eligible to participate in the
allocation of Employer Regular Contributions under the provisions of
Article VI for any prior Plan Year after such back pay award or
agreement has been effected, his Employer shall make an Employer
Regular Contribution equal to the amount of the Employer Regular
Contribution which would have been allocated to such Participant under
the provisions of Article VI as in effect during each such Plan Year.
The amounts of such additional contributions shall be credited to the
Account of such Participant. Any additional contributions made by an
Employer pursuant to this Section shall be made in accordance with,
and subject to the limitations of the applicable provisions of
Articles IV, VI, and VII.
57
20.10 MILITARY LEAVE
Notwithstanding any other provision of the Plan to the contrary,
contributions, benefits, and service credit with respect to qualified
military service shall be provided in accordance with Section 414(u)
of the Code. The Administrator shall notify the Trustee of any
Participant with respect to whom additional contributions are made
because of qualified military service.
20.11 CONDITION ON EMPLOYER REGULAR CONTRIBUTIONS
Notwithstanding anything to the contrary contained in the Plan or the
Trust Agreement, any contribution of an Employer hereunder is
conditioned upon the continued qualification of the Plan under Section
401(a) of the Code, the exempt status of the Trust under Section
501(a) of the Code, and the deductibility of the contribution under
Section 404 of the Code. Except as otherwise provided in this Section
and Section 20.11, however, in no event shall any portion of the
property of the Trust ever revert to or otherwise inure to the benefit
of an Employer or any Related Company.
20.12 RETURN OF CONTRIBUTIONS TO AN EMPLOYER
Notwithstanding any other provision of the Plan or the Trust Agreement
to the contrary, in the event any contribution of an Employer made
hereunder:
(a) is made under a mistake of fact, or
(b) is disallowed as a deduction under Section 404 of the Code,
such contribution may be returned to the Employer within one year
after the payment of the contribution or the disallowance of the
deduction to the extent disallowed, whichever is applicable.
20.13 VALIDITY OF PLAN
The validity of the Plan shall be determined and the Plan shall be
construed and interpreted in accordance with the laws of the State of
Ohio, except as preempted by applicable Federal law. The invalidity
or illegality of any provision of the Plan shall not affect the
legality or validity of any other part thereof.
20.14 TRUST AGREEMENT
The Trust Agreement and the Trust maintained thereunder shall be
deemed to be a part of the Plan as if fully set forth herein and the
provisions of the Trust Agreement are hereby incorporated by reference
into the Plan.
58
20.15 PARTIES BOUND
The Plan shall be binding upon the Employers, all Participants and
Beneficiaries hereunder, and, as the case may be, the heirs,
executors, administrators, successors, and assigns of each of them.
20.16 APPLICATION OF CERTAIN PLAN PROVISIONS
A Participant's Beneficiary, if the Participant has died, or alternate
payee under a qualified domestic relations order shall be treated as a
Participant for purposes of directing investments as provided in
Article IX. For purposes of the general administrative provisions and
limitations of the Plan, a Participant's Beneficiary or alternate
payee under a qualified domestic relations order shall be treated as
any other person entitled to receive benefits under the Plan. Upon
any termination of the Plan, any such Beneficiary or alternate payee
under a qualified domestic relations order who has an interest under
the Plan at the time of such termination, which does not cease by
reason thereof, shall be deemed to be a Participant for all purposes
of the Plan.
20.17 LEASED EMPLOYEES
Any leased employee, other than an excludable leased employee, shall
be treated as an employee of the Employer for which he performs
services for all purposes of the Plan with respect to the provisions
of Sections 401(a)(3), (4), (7), and (16), and 408(k), 410, 411, 415,
and 416 of the Code; provided, however, that no leased employee shall
accrue a benefit hereunder based on service as a leased employee
except as otherwise specifically provided in the Plan. A "leased
employee" means any person who performs services for an Employer or a
Related Company (the "recipient") (other than an employee of the
recipient) pursuant to an agreement between the recipient and any
other person (the "leasing organization") on a substantially full-time
basis for a period of at least one year, provided that such services
are performed under the primary direction or control of the recipient.
An "excludable leased employee" means any leased employee of the
recipient who is covered by a money purchase pension plan maintained
by the leasing organization which provides for (i) a nonintegrated
employer contribution on behalf of each participant in the plan equal
to at least ten percent of compensation, (ii) full and immediate
vesting, and (iii) immediate participation by employees of the leasing
organization (other than employees who perform substantially all of
their services for the leasing organization or whose compensation from
the leasing organization in each plan year during the four-year period
ending with the plan year is less than $1,000); provided, however,
that leased employees do not constitute more than 20 percent of the
recipient's nonhighly compensated work force. For purposes of this
Section, contributions or benefits provided to a leased employee by
59
the leasing organization that are attributable to services performed
for the recipient shall be treated as provided by the recipient.
20.18 TRANSFERRED FUNDS
If funds from another qualified plan are transferred or merged into
the Plan, such funds shall be held and administered in accordance with
any restrictions applicable to them under such other plan to the
extent required by law and shall be accounted for separately to the
extent necessary to accomplish the foregoing.
ARTICLE XXI
TOP-HEAVY PROVISIONS
21.1 DEFINITIONS
For purposes of this Article, the following terms shall have the
following meanings:
(a) The "compensation" of an employee means compensation as defined
in Section 415 of the Code and regulations issued thereunder.
In no event, however, shall the compensation of a Participant
taken into account under the Plan for any Plan Year
exceed $160,000 (subject to adjustment annually as provided in
Section 401(a)(17)(B) and Section 415(d) of the Code). If the
compensation of a Participant is determined over a period of
time that contains fewer than 12 calendar months, then the
annual compensation limitation described above shall be
adjusted with respect to that Participant by multiplying the
annual compensation limitation in effect for the Plan Year by a
fraction the numerator of which is the number of full months in
the period and the denominator of which is 12; provided,
however, that no proration is required for a Participant who is
covered under the Plan for less than one full Plan Year if the
formula for allocations is based on Compensation for a period
of at least 12 months.
(b) The "determination date" with respect to any Plan Year means
the last day of the preceding Plan Year, except that the
determination date with respect to the first Plan Year of the
Plan, shall mean the last day of such Plan Year.
(c) A "key employee" means any Employee or former Employee who is a
key employee pursuant to the provisions of Section 416(i)(1) of
the Code and any Beneficiary of such Employee or former
Employee.
60
(d) A "non-key employee" means any Employee who is not a key
employee.
(e) A "permissive aggregation group" means those plans included in
each Employer's required aggregation group together with any
other plan or plans of the Employer, so long as the entire
group of plans would continue to meet the requirements of
Sections 401(a)(4) and 410 of the Code.
(f) A "required aggregation group" means the group of tax-qualified
plans maintained by an Employer or a Related Company consisting
of each plan in which a key employee participates and each
other plan that enables a plan in which a key employee
participates to meet the requirements of Section 401(a)(4) or
Section 410 of the Code, including any plan that terminated
within the five-year period ending on the relevant
determination date.
(g) A "super top-heavy group" with respect to a particular Plan
Year means a required or permissive aggregation group that, as
of the determination date, would qualify as a top-heavy group
under the definition in paragraph (i) of this Section with "90
percent" substituted for "60 percent" each place where "60
percent" appears in the definition.
(h) A "super top-heavy plan" with respect to a particular Plan Year
means a plan that, as of the determination date, would qualify
as a top-heavy plan under the definition in paragraph (j) of
this Section with "90 percent" substituted for "60 percent"
each place where "60 percent" appears in the definition. A
plan is also a "super top-heavy plan" if it is part of a super
top-heavy group.
(i) A "top-heavy group" with respect to a particular Plan Year
means a required or permissive aggregation group if the sum, as
of the determination date, of the present value of the
cumulative accrued benefits for key employees under all defined
benefit plans included in such group and the aggregate of the
account balances of key employees under all defined
contribution plans included in such group exceeds 60 percent of
a similar sum determined for all employees covered by the plans
included in such group.
(j) A "top-heavy plan" with respect to a particular Plan Year means
(i), in the case of a defined contribution plan (including any
simplified employee pension plan), a plan for which, as of the
determination date, the aggregate of the accounts (within the
meaning of Section 416(g) of the Code and the regulations and
rulings thereunder) of key employees exceeds 60 percent of the
61
aggregate of the accounts of all participants under the plan,
with the accounts valued as of the relevant valuation date and
increased for any distribution of an account balance made in
the five-year period ending on the determination date, (ii), in
the case of a defined benefit plan, a plan for which, as of the
determination date, the present value of the cumulative accrued
benefits payable under the plan (within the meaning of Section
416(g) of the Code and the regulations and rulings thereunder)
to key employees exceeds 60 percent of the present value of the
cumulative accrued benefits under the plan for all employees,
with the present value of accrued benefits to be determined
under the accrual method uniformly used under all plans
maintained by an Employer or, if no such method exists, under
the slowest accrual method permitted under the fractional
accrual rate of Section 411(b)(1)(C) of the Code and including
the present value of any part of any accrued benefits
distributed in the five-year period ending on the determination
date, and (iii) any plan (including any simplified employee
pension plan) included in a required aggregation group that is
a top-heavy group. For purposes of this paragraph, the
accounts and accrued benefits of any employee who has not
performed services for an Employer or a Related Company during
the five-year period ending on the determination date shall be
disregarded. For purposes of this paragraph, the present value
of cumulative accrued benefits under a defined benefit plan for
purposes of top-heavy determinations shall be calculated using
the actuarial assumptions otherwise employed under such plan,
except that the same actuarial assumptions shall be used for
all plans within a required or permissive aggregation group. A
Participant's interest in the Plan attributable to any Rollover
Contributions, except Rollover Contributions made from a plan
maintained by an Employer or a Related Company, shall not be
considered in determining whether the Plan is top-heavy.
Notwithstanding the foregoing, if a plan is included in a
required or permissive aggregation group that is not a
top-heavy group, such plan shall not be a top-heavy plan.
(k) The "valuation date" with respect to any determination date
means the most recent Valuation Date occurring within the
12-month period ending on the determination date.
21.2 APPLICABILITY
Notwithstanding any other provision of the Plan to the contrary, the
provisions of this Article shall be applicable during any Plan Year in
which the Plan is determined to be a top-heavy plan as hereinafter
defined. If the Plan is determined to be a top-heavy plan and upon a
subsequent determination date is determined no longer to be a top-
heavy plan, the vesting provisions of Article VI shall again become
62
applicable as of such subsequent determination date; provided,
however, that if the prior vesting provisions do again become
applicable, any Employee with three or more years of Vesting Service
may elect in accordance with the provisions of Article VI, to continue
to have his vested interest in his Employer Regular Contributions Sub-
Account determined in accordance with the vesting schedule specified
in Section 21.5.
21.3 MINIMUM EMPLOYER REGULAR CONTRIBUTION
If the Plan is determined to be a top-heavy plan, the Employer Regular
Contributions allocated to the Account of each non-key employee who is
an Eligible Employee and who is employed by an Employer or a Related
Company on the last day of such top-heavy Plan Year shall be no less
than the lesser of (i) three percent of his compensation or (ii) the
largest percentage of compensation that is allocated as an Employer
Regular Contribution and/or Salary Deferral Contribution for such Plan
Year to the Account of any key employee; except that, in the event the
Plan is part of a required aggregation group, and the Plan enables a
defined benefit plan included in such group to meet the requirements
of Section 401(a)(4) or 410 of the Code, the minimum allocation of
Employer Regular Contributions to each such non-key employee shall be
three percent of the compensation of such non-key employee. Any
minimum allocation to a non-key employee required by this Section
shall be made without regard to any social security contribution made
on behalf of the non-key employee, his number of hours of service, his
level of compensation, or whether he declined to make elective or
mandatory contributions. Notwithstanding the minimum top-heavy
allocation requirements of this Section, if the Plan is a top-heavy
plan, each non-key employee who is an Eligible Employee and who is
employed by an Employer or a Related Company on the last day of a
top-heavy Plan Year and who is also covered under a top-heavy defined
benefit plan maintained by an Employer or a Related Company will
receive the top-heavy benefits provided under the defined benefit plan
in lieu of the minimum top-heavy allocation under the Plan.
21.4 ADJUSTMENTS TO SECTION 415 LIMITATIONS
If the Plan is determined to be a top-heavy plan and an Employer
maintains a defined benefit plan covering some or all of the Employees
that are covered by the Plan, the defined benefit plan fraction and
the defined contribution plan fraction, described in Article VII,
shall be determined as provided in Section 415 of the Code by
substituting "1.0" for "1.25" each place where "1.25" appears, except
that such substitutions shall not be applied to the Plan if (i) the
Plan is not a super top-heavy plan, (ii) the Employer Regular
Contribution for such top-heavy Plan Year for each non-key employee
who is to receive a minimum top-heavy benefit hereunder is not less
than four percent of such non-key employee's compensation, and (iii)
63
the minimum annual retirement benefit accrued by a non-key employee
who participates under one or more defined benefit plans of an
Employer or a Related Company for such top-heavy Plan Year is not less
than the lesser of three percent times years of service with an
Employer or a Related Company or thirty percent.
21.5 ACCELERATED VESTING
If the Plan is determined to be a top-heavy plan, a Participant's
vested interest in his Employer Regular Contributions Sub-Account
shall be determined no less rapidly than in accordance with the
following vesting schedule:
Years of Vesting Service Vested Interest
------------------------ ---------------
less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
ARTICLE XXII
EFFECTIVE DATE
22.1 EFFECTIVE DATE OF AMENDMENT AND RESTATEMENT
Unless otherwise specifically provided by the terms of the Plan, this
amendment and restatement is effective with respect to each change
made to satisfy the provisions of the (i) Uniform Services Employment
and Reemployment Rights Act ("USERRA"), (ii) Retirement Protection Act
of 1994 ("GATT"), (iii) Small Business Job Protection Act of 1996
( SBJPA"), and (iv) Tax Reform Act of 1997 ("TRA '97"), the first day
of the first period (which may or may not be the first day of a Plan
Year) with respect to which such change became required or was
permitted because of such provision, including, but not limited to,
the following:
(a) The provisions of Section 20.10 of the Plan which satisfy the
provisions of USERRA are effective December 12, 1994.
(b) Changes in the definition of "leased employee" in Section 20.16
of the Plan to satisfy the provisions of SBJPA are effective
January 1, 1997.
64
(c) The provisions of Section 7.10 of the Plan which satisfy the
provisions of GATT are effective January 1, 1995.
(d) The following changes made to satisfy the provisions of SBJPA
are effective for Plan Years beginning on or after January 1,
1997:
(1) The removal of provisions for family aggregation in the
definition of "Compensation" in Section 1.1 of the Plan,
"test compensation" in Section 7.1 of the Plan and
"compensation" in Section 21.1 of the Plan.
(2) The definition of "Highly Compensated Employee" in
Section 1.1.
(3) The addition in Section 7.1 of the Plan of a defined
term "testing year" and changes to the 401(k)
discrimination test in Sections 7.4 and 7.5 of the Plan.
(e) Changes made under Section 14.6 of the Plan relating to
restrictions on alienation to satisfy the provisions of TRA '97
are effective August 5, 1997.
(f) Changes made under Section 14.4 of the Plan relating to minimum
required distributions to satisfy the provisions of SBJPA are
effective January 1, 1997.
(g) The change in the involuntary cash-out limitation from $3,500
to $5,000 as permitted under TRA '97 is effective January 1,
1998.
Each other change made under this amendment and restated is effective
January 1, 1998, unless otherwise specifically provided by the terms
of the Plan.
* * *
EXECUTED AT Wooster, Ohio, this 4th day of December, 1998.
RUBBERMAID INCORPORATED
By: William R. Connor
-------------------------------
Title: Vice President of
Compensation and
Benefits
65
SCHEDULE I
----------
Date of
Date of Special 100% Vesting
Employer and Location Adoption Provisions Under the Plan*
--------------------- -------- ---------- --------------
1. Rubbermaid Commercial 1/1/72 No
Products LLC
Winchester, Virginia
2. Rubbermaid Incorporated 9/30/44 No
Wooster, Ohio
3. Rubbermaid Texas Limited
Greenville, Texas 1/1/95 No
(formerly Rubbermaid
Incorporated,
Greenville, Texas)
Cleburne, Texas 1/1/95 Yes(1)
(formerly Rubbermaid
Incorporated,
Cleburne, Texas)
4. Rubbermaid Sales Corp. 1/1/95 Yes(2)
Wooster, Ohio
Winchester, Virginia
Hudson, Ohio
Corning, New York
Jeffersonville, Ohio
Woodbridge, Virginia
Kenosha, Wisconsin
5. Rubbermaid Commercial 1/1/88 No
Products LLC (formerly
Rubbermaid Commercial -
Cleveland Inc.)
Cleveland, Tennessee
6. Rubbermaid Health Care 1/1/76 No 3/21/97
Products Inc. (formerly
Rubbermaid-Statesville,
Inc. and Carex Inc.)
Statesville, North Carolina
7. Rubbermaid-Cortland Inc. 3/12/85 No 2/1/98
Cortland, New York
Date of
Date of Special 100% Vesting
Employer and Location Adoption Provisions Under the Plan*
--------------------- -------- ---------- --------------
8. Rubbermaid Specialty 1/1/86 No
Products Inc.
Centerville, Iowa
(formerly Rubbermaid
Centerville Inc.)
Winfield, Kansas
(formerly Rubbermaid
Winfield Inc.)
9. Rubbermaid Office
Products Inc.
Maryville, Tennessee 1/1/89 Yes(3) 6/13/97
Carson, California 1/1/93 No
10. Rubbermaid Incorporated 1/1/88 No
Goodyear, Arizona
11. The Little Tikes Company 1/1/88 No
Hudson, Ohio
Sebring, Ohio
City of Industry, California
12. The Little Tikes Company 1/1/88 No 3/1/97
(Missouri)
Aurora, Missouri
13. The Little Tikes Company 12/8/94 No
(Pennsylvania)
Shippensburg, Pennsylvania
14. The Little Tikes Company 4/21/95 No
(South Carolina)
Columbia, South Carolina
15. Rubbermaid Cleaning 1/1/96 No
Products Inc.
(formerly Empire Brushes,
Inc.)
Greenville, North Carolina
Date of
Date of Special 100% Vesting
Employer and Location Adoption Provisions Under the Plan*
--------------------- -------- ---------- --------------
16. Little Tikes Commercial Play 4/1/98 Yes(4)
Systems Inc.
Farmington, Missouri
17. Graco Children's Products Inc., 8/17/98 Yes(5)
Century Products Division
Macedonia, Ohio
Massillon, Ohio
______________________
* Participants employed at the specified location as of the date
entered in this column became 100% vested in their Account under the
Plan as of such date.
Special Provisions
(1) Participants at the Cleburne, Texas facility of Rubbermaid
Incorporated are 100% vested in their accounts under the
prior Rubbermaid Commercial Products Inc. Associates Profit
Sharing Retirement Plan as of July 1, 1992.
(2) Participants employed by Rubbermaid Sales Corporation are
NOT eligible to receive any Employer Regular Contributions
under Article VI.
(3) The Participant Accounts of those Participants employed at
the Maryville, Tennessee facility of Rubbermaid Office
Products Inc. as of June 13, 1997 were transferred to the
Newell Operating Company Savings Plan on October 1, 1997, in
accordance with Section 20.8 of the Plan.
(4) Each Employee who was employed by Little Tikes Commercial
Play Systems Inc. on January 1, 1998 shall become an
Eligible Employee as of April 1, 1998. Notwithstanding any
other provision of the Plan to the contrary, Compensation
from January 1, 1998 through December 31, 1998 shall be
taken into account in determining the amount and allocation
of Employer Regular Contributions made on behalf of such
Eligible Employees.
(5) Each Employee who was employed by Century Products Company
on January 1, 1998 shall become an Eligible Employee as of
August 17, 1998. Notwithstanding the foregoing,
Participants employed by the Century Products Division are
NOT eligible to receive any Employer Regular Contributions
under Article VI.
ADDENDUM A
The provisions of Articles XV and XVI as set forth in this Addendum A
shall apply to that portion, if any, of a Participant's Account that
is attributable to his account under the Rubbermaid Profit Sharing
Plan that was merged into the Plan effective April 1, 1995.
ARTICLE XV
FORM OF PAYMENT
15.1 DEFINITIONS
For purposes of this Article, the following terms have the following
meanings:
(a) A Participant's "annuity starting date" means the first day of
the first period for which an amount is paid as an annuity or any
other form.
(b) The "automatic annuity form" means the form of annuity that will
be purchased on a Participant's behalf unless the Participant
elects another form of annuity.
(c) A "qualified election" means an election that is made during the
qualified election period. A qualified election of a form of
payment other than a qualified joint and survivor annuity or
designating a Beneficiary other than the Participant's spouse to
receive amounts otherwise payable as a qualified preretirement
survivor annuity must include the written consent of the
Participant's spouse, if any. A Participant's spouse will be
deemed to have given written consent to the Participant's
election if the Participant establishes to the satisfaction of a
Plan representative that spousal consent cannot be obtained
because the spouse cannot be located or because of other
circumstances set forth in Section 401(a)(11) of the Code and
regulations issued thereunder. The spouse's written consent must
acknowledge the effect of the Participant's election and must be
witnessed by a Plan representative or a notary public. In
addition, the spouse's written consent must either (i) specify
the form of payment selected instead of a joint and survivor
annuity, if applicable, and that such form may not be changed
(except to a qualified joint and survivor annuity) without
written spousal consent and specify any non-spouse Beneficiary
designated by the Participant, if applicable, and that such
Beneficiary may not be changed without written spousal consent or
(ii) acknowledge that the spouse has the right to limit consent
as provided in clause (i), but permit the Participant to change
the form of payment selected or the designated Beneficiary
without the spouse's further consent. Any written consent given
or deemed to have been given by a Participant's spouse hereunder
shall be irrevocable and shall be effective only with respect to
such spouse and not with respect to any subsequent spouse.
(d) The "qualified election period" with respect to the automatic
annuity form means the 90 day period ending on a Participant's
annuity starting date. The "qualified election period" with
respect to a qualified preretirement survivor annuity means the
period beginning on the first day of the Plan Year in which the
Participant attains age 35 or, if he terminates employment prior
to such date, the day he terminates employment with his Employer
and all Related Companies.
(e) A "qualified joint and survivor annuity" means an immediate
annuity payable at earliest retirement age under the Plan, as
defined in regulations issued under Section 401(a)(11) of the
Code, for the life of a Participant with a survivor annuity
payable for the life of the Participant's spouse that is equal to
at least 50 percent of the amount of the annuity payable during
the joint lives of the Participant and his spouse, provided that
the survivor annuity shall not be payable to a Participant's
spouse if such spouse is not the same spouse to whom the
Participant was married on his annuity starting date.
(f) A "qualified preretirement survivor annuity" means an annuity
payable to the surviving spouse of a Participant in accordance
with the provisions of Section 15.6.
(g) A "single life annuity" means an annuity payable for the life of
the Participant.
15.2 NORMAL FORM OF PAYMENT
Unless a Participant elects an optional form of payment, distribution
shall be made to the Participant through the purchase of a single
premium, nontransferable annuity contract for such term and in such
form as the Participant shall select, subject to the provisions of
Section 15.5. The terms of any annuity contract purchased hereunder
and distributed to a Participant shall comply with the requirements of
the Plan.
Unless distribution is made to a Participant's spouse in the form of a
qualified preretirement survivor annuity, if a Participant dies prior
to his annuity starting date, distribution shall be made to the
Participant's Beneficiary in one of the optional forms of payment, as
elected by the Participant or his Beneficiary if the Participant dies
without having made an election hereunder.
15.3 OPTIONAL FORMS OF PAYMENT
Subject to the provisions of Section 15.5, a Participant, or his
Beneficiary, as the case may be, may elect to receive distribution of
all or a portion of his Account in one or a combination of the
following optional forms of payment:
(a) Single Sum Payment.
(b) Installment Payments - Distribution shall be made in a series of
installments over a period not exceeding the life expectancy of
the Participant, or a period not exceeding the joint life and
last survivor expectancy of the Participant and his Beneficiary.
If a Participant has died, his Beneficiary may elect to receive
distribution of all or a portion of his Account in a series of
installments over a period not exceeding (i) the end of the fifth
calendar year beginning after the Participant's death, if the
Beneficiary is not the Participant's spouse or (ii) the life
expectancy of the Beneficiary, if the Beneficiary is the
Participant's spouse. Each installment shall be equal in amount
except as necessary to adjust for any changes in the value of the
Participant's Account, unless the Participant or Beneficiary
elects a more rapid distribution schedule. The determination of
life expectancies shall be made on the basis of the expected
return multiples in Tables V and VI of Section 1.72-9 of the
Treasury regulations and shall be calculated either once at the
time installment payments begin or annually for the Participant
and/or his Beneficiary, if his Beneficiary is his spouse, as
determined by the Participant at the time installment payments
begin.
Notwithstanding the foregoing, a Participant may elect to receive
distribution of his Account for periods prior to the April 1
following the close of the calendar year in which he attains age
70-1/2 in a series of installments or non-periodic payments made
pursuant to any formula elected by the Participant, without
regard to the life expectancies of the Participant and his
Beneficiary.
15.4 CHANGE OF ELECTION
Subject to the provisions of Section 15.5, a Participant or
Beneficiary who has elected an optional form of payment or elected an
annuity form of payment may revoke or change his election at any time
prior to his annuity starting date by filing with the Administrator an
election in the form prescribed by the Administrator.
15.5 FORM OF ANNUITY REQUIREMENTS
Distribution shall be made to a Participant through the purchase of an
annuity contract that provides for payment in one of the following
automatic annuity forms, unless the Participant elects a different
type of annuity or elects an optional form of payment.
(a) The automatic annuity form for a Participant who is married on
his annuity starting date is the 50 percent qualified joint and
survivor annuity.
(b) The automatic annuity form for a Participant who is not married
on his annuity starting date is the single life annuity.
A Participant's election of an annuity other than the automatic
annuity form or of the optional form of payment shall not be effective
unless it is a qualified election; provided, however, that spousal
consent shall not be required if the form of payment elected by the
Participant is a qualified joint and survivor annuity. A Participant
who has elected an optional form of payment can change his election
only pursuant to a qualified election.
15.6 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY REQUIREMENTS
If a married Participant dies before his annuity starting date, his
spouse shall receive distribution of the value of the Participant's
vested interest in his Account through the purchase of an annuity
contract that provides for payment over the life of the Participant's
spouse. A Participant's spouse may elect to receive distribution
under any one of the other forms of payment available under this
Article instead of in the qualified preretirement survivor annuity
form. A Participant can only designate a non-spouse Beneficiary to
receive distribution of his Account pursuant to a qualified election.
15.7 DIRECT ROLLOVER
Notwithstanding any other provision of the Plan to the contrary, in
lieu of receiving distribution in the form of payment provided under
this Article, a "qualified distributee" may elect, in accordance with
rules prescribed by the Administrator, to have any portion or all of a
distribution that is an "eligible rollover distribution" paid directly
by the Plan to the "eligible retirement plan" designated by the
"qualified distributee"; provided, however, that this provision shall
not apply if the total distribution is less than $200 and that a
"qualified distributee" may not elect this provision with respect to a
portion of a distribution that is less than $500. Any such payment by
the Plan to another "eligible retirement plan" shall be a direct
rollover and shall be made only after all applicable consent
requirements are satisfied. For purposes of this Section, the
following terms have the following meanings:
(a) An "eligible retirement plan" means an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code that
accepts rollovers; provided, however, that, in the case of a
direct rollover by a surviving spouse, an eligible retirement
plan does not include a qualified trust described in Section
401(a) of the Code.
(b) An "eligible rollover distribution" means any distribution of all
or any portion of the balance of a Participant's Account;
provided, however, that an eligible rollover distribution does
not include: any distribution that is one of a series of
substantially equal periodic payments made not less frequently
than annually for the life or life expectancy of the qualified
distributee or the joint lives or joint life expectancies of the
qualified distributee and the qualified distributee's designated
beneficiary, or for a specified period of ten years or more; and
any distribution to the extent such distribution is required
under Section 401(a)(9) of the Code.
(c) A "qualified distributee" means a Participant, his surviving
spouse, or his spouse or former spouse who is an alternate payee
under a qualified domestic relations order, as defined in Section
414(p) of the Code.
15.8 NOTICE REGARDING FORMS OF PAYMENT
The Administrator shall provide each Participant with a written
explanation of his right to defer distribution until his Normal
Retirement Date, or such later date as may be provided in the Plan,
his right to make a direct rollover, and (i) the terms and conditions
of the automatic annuity form and the other forms of payment available
under the Plan, (ii) the Participant's right to choose a form of
payment other than the automatic annuity form or to revoke such
choice, and (iii) the rights of the Participant's spouse. The
Administrator shall provide such explanation within the 60 day period
ending 30 days before the Participant's annuity starting date.
Notwithstanding the foregoing, distribution of the Participant's
Account may commence less than 30 days after such explanation is
provided to the Participant if (i) the Administrator clearly informs
the Participant of his right to consider, for a period of at least 30
days following his receipt of the explanation, his election of whether
or not to make a direct rollover or to receive a distribution prior to
his Normal Retirement Date and his election of a form of payment, (ii)
the Participant, after receiving the explanation, affirmatively elects
an early distribution with his spouse's written consent, if necessary,
(iii) the Participant's annuity starting date is a date after the date
the explanation is provided to him, (iv) the Participant may revoke
his election at any time prior to the later of his annuity starting
date or the expiration of the seven-day period beginning the day after
the date the explanation is provided to him, and (v) distribution does
not commence to the Participant before such revocation period ends.
In addition, the Administrator shall provide such a Participant with a
written explanation of (i) the terms and conditions of the qualified
preretirement survivor annuity, (ii) the Participant's right to
designate a non-spouse Beneficiary to receive distribution of his
Account or to revoke such designation, and (iii) the rights of the
Participant's spouse. The Administrator shall provide such
explanation within one of the following periods, whichever ends last:
(a) the period beginning with the first day of the Plan Year in which
the Participant attains age 32 and ending on the last day of the
Plan Year preceding the Plan Year in which the Participant
attains age 35; or
(b) the period beginning 12 calendar months before the date an
individual becomes a Participant and ending 12 calendar months
after such date;
provided, however, that in the case of a Participant who separates
from service prior to attaining age 35, the explanation shall be
provided to such Participant within the period beginning 12 calendar
months before the Participant's separation from service and ending 12
calendar months after his separation from service.
15.9 RE-EMPLOYMENT
If a Participant is re-employed by an Employer or a Related Company
prior to receiving distribution of the entire balance of his vested
interest in his Account, his prior election of a form of payment
hereunder shall become ineffective.
15.10 SECTION 242(B)(2) ELECTIONS
Notwithstanding any other provisions of this Article and subject to
the requirements of Sections 15.5 and 15.6, distribution on behalf of
a Participant, including a five-percent owner, may be made pursuant to
an election under Section 242(b)(2) of the Tax Equity and Fiscal
Responsibility Act of 1982 and in accordance with all of the following
requirements:
(a) The distribution is one which would not have disqualified the
Trust under Section 401(a)(9) of the Code as in effect prior to
amendment by the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of distribution
elected by the Participant whose interest in the Trust is being
distributed or, if the Participant is deceased, by a Beneficiary
of such Participant.
(c) Such election was in writing, was signed by the Participant or
the Beneficiary, and was made before January 1, 1984.
(d) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(e) The method of distribution elected by the Participant or the
Beneficiary specifies the time at which distribution will
commence, the period over which distribution will be made, and in
the case of any distribution upon the Participant's death, the
Beneficiaries of the Participant listed in order of priority.
A distribution upon death shall not be made under this Section unless
the information in the election contains the required information
described above with respect to the distributions to be made upon the
death of the Participant. For any distribution which commences before
January 1, 1984, but continues after December 31, 1983, the
Participant or the Beneficiary to whom such distribution is being made
will be presumed to have designated the method of distribution under
which the distribution is being made, if this method of distribution
was specified in writing and the distribution satisfies the
requirements in paragraphs (a) and (e) of this Section. If an
election is revoked, any subsequent distribution will be in accordance
with the other provisions of the Plan. Any changes in the election
will be considered to be a revocation of the election. However, the
mere substitution or addition of another Beneficiary (one not
designated as a Beneficiary in the election), under the election will
not be considered to be a revocation of the election, so long as such
substitution or addition does not alter the period over which
distributions are to be made under the election directly, or
indirectly (for example, by altering the relevant measuring life).
ARTICLE XVI
BENEFICIARIES
16.1 DESIGNATION OF BENEFICIARY
A married Participant's Beneficiary shall be his spouse. A married
Participant may designate a non-spouse Beneficiary, but only pursuant
to a qualified election as provided in Article XV.
A Participant may designate a Beneficiary on the form prescribed by
the Administrator. If no Beneficiary has been designated pursuant to
the provisions of this Section, or if no Beneficiary survives the
Participant and he has no surviving spouse, then the Beneficiary under
the Plan shall be the Participant's surviving children or, if none,
the Participant's surviving parents or, if none, the Participant's
surviving brothers and sisters or, if none, the Participant's
executors and administrators. If a Beneficiary dies after becoming
entitled to receive a distribution under the Plan but before
distribution is made to him in full, and if no other Beneficiary has
been designated to receive the balance of the distribution in that
event, the estate of the deceased Beneficiary shall be the Beneficiary
as to the balance of the distribution.
EXHIBIT 5
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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. - Registration of 300,000 Shares
of Common Stock on Form S-3
-------------------------------------------
Ladies and Gentlemen:
We are acting as counsel for Newell Co., a Delaware corporation
(the "Company"), in connection with the Company's filing with the
Securities and Exchange Commission of a Registration Statement on Form
S-3 (the Registration Statement ) covering 300,000 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 pursuant to
the Rubbermaid Retirement Plan (the "Plan").
In connection with this 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 Registration
Statement have been duly authorized and, when issued in accordance
with the terms of the Plan and as contemplated in the Registration
Statement 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).
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Frederick L. Hartmann
-------------------------------
Frederick L. Hartmann
EXHIBIT 23.1
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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
