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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) March 24, 1999
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NEWELL RUBBERMAID INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 1-9608 36-3514169
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
29 East Stephenson Street, Freeport, Illinois 61032
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (815) 235-4171
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NEWELL CO.
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On March 24, 1999, Newell Co., a Delaware corporation (the
"Registrant"), completed its previously announced merger with
Rubbermaid Incorporated, an Ohio corporation ("Rubbermaid").
Pursuant to the Agreement and Plan of Merger, dated as of October
20, 1999 (the "Merger Agreement"), among the Registrant, Rooster
Company, a Delaware corporation and a wholly owned subsidiary of
the Registrant ("Merger Sub"), and Rubbermaid, Merger Sub merged
with and into Rubbermaid and Rubbermaid became a wholly owned
subsidiary of the Registrant (the "Merger"). As a result of the
Merger, each outstanding share of Rubbermaid common stock was
converted into 0.7883 of a share of Newell common stock, with
cash to be paid in lieu of the issuance of fractional shares of
Newell common stock. Under the terms of the Merger Agreement,
each option to acquire Rubbermaid common stock was also converted
on the same basis into an option to acquire Newell common stock.
The exchange ratio and other terms of the Merger Agreement were
determined through arm's length negotiations between
representatives of the Registrant and Rubbermaid.
The Merger was treated as a tax-free reorganization for
federal income tax purposes and will be accounted for under the
pooling-of-interests method of accounting. The text of the joint
press release of the Registrant and Rubbermaid issued on March
24, 1999 relating to the completion of the Merger is filed
herewith as Exhibit 99.1.
In connection with the Merger, the Registrant also amended
its Restated Certificate of Incorporation to change its corporate
name from "Newell Co." to "Newell Rubbermaid Inc." The text of
the Restated Certificate of Incorporation, as amended, is filed
herewith as Exhibit 3.1.
Pursuant to the Merger Agreement, the Registrant's board of
directors now consists of the following members: William P. Sovey
(Chairman); John J. McDonough; Wolfgang R. Schmitt; Tom H.
Barrett; Scott S. Cowen; Alton F. Doody; Thomas J. Falk; Daniel
C. Ferguson; Thomas A. Ferguson, Jr.; Robert L. Katz; William D.
Marohn; Elizabeth Cuthbert Millett; Cynthia A. Montgomery; Allan
P. Newell; and Gordon R. Sullivan.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
The audited consolidated financial statements of Rubbermaid
as of December 31, 1997 and for the years ended December 31,
1997, 1996 and 1995 have previously been filed with the
Securities and Exchange Commission (the "Commission") as part of
the Registrant's Form 8-K/A dated November 20, 1998 and are
incorporated herein by reference.
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The unaudited consolidated financial statements of
Rubbermaid as of October 2, 1998 and for the periods ended
October 2, 1998 and September 30, 1997 have previously been filed
with the Commission as part of Rubbermaid's Quarterly Report on
Form 10-Q for the quarter ended October 2, 1998 and are
incorporated herein by reference.
(b) Pro Forma Financial Information.
The unaudited pro forma financial information of the
Registrant as of and for the year ended December 31, 1998 has
previously been filed with the Commission as part of the
Registrant's Form 10-K for the year ended December 31, 1998 and
is incorporated herein by reference.
The unaudited pro forma financial information of the
Registrant as of September 30, 1998, for the periods ended
September 30, 1998 and 1997, and for the years ended December 31,
1997, 1996 and 1995, have previously been filed with the
Commission on February 4, 1999 as part of the Registrant's
Registration Statement on Form S-4 (Reg. No. 333-71747) and are
incorporated herein by reference.
(c) Exhibits.
2.1 Agreement and Plan of Merger, dated as of October
20, 1998, by and between Newell Co., Rooster
Company and Rubbermaid Incorporated (incorporated
by reference to Exhibit 2.1 to the Registrant's
Current Report on Form 8-K dated October 20,
1998).
3.1 Restated Certificate of Incorporation of Newell
Rubbermaid Inc., as amended.
3.2 By-Laws of Newell Rubbermaid Inc., as amended.
23.1 Consent of KPMG LLP.
99.1 Text of joint press release of Newell Co. and
Rubbermaid Incorporated issued March 24, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
NEWELL RUBBERMAID INC.
(Registrant)
Date: March 24, 1999 By: /s/ Dale L. Matschullat
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Dale L. Matschullat
Vice President -- General
Counsel
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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2.1 Agreement and Plan of Merger, dated as of October 20,
1998, by and between Newell Co., Rooster Company and
Rubbermaid Incorporated (incorporated by reference to
Exhibit 2.1 to the Registrant's Current Report on Form
8-K dated October 20, 1998).
3.1 Restated Certificate of Incorporation of Newell
Rubbermaid Inc., as amended.
3.2 By-Laws of Newell Rubbermaid Inc., as amended.
23.1 Consent of KPMG LLP.
99.1 Text of joint press release of Newell Co. and
Rubbermaid Incorporated issued March 24, 1999.
EXHIBIT 3.1
Filed May 18, 1987 at 3:00 p.m.
Delaware Secretary of State
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW NEWELL CO.
NEW NEWELL CO., a corporation organized and existing under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is NEW NEWELL CO. (the
"Corporation"). The date of filing the Corporation's original
Certificate of Incorporation with the Secretary of State of the
State of Delaware was February 23, 1987.
2. The text of the Certificate of Incorporation of the
Corporation as amended or supplemented heretofore and herewith is
hereby restated to read as herein set forth in full:
FIRST: the name of the Corporation is NEW NEWELL CO.
SECOND: The address of the Corporation's registered office in
the State of Delaware is 229 South State Street in the City of Dover,
County of Kent. The name of the Corporation's registered agent at
such address is United States Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is 56,000,000, consisting of 50,000,000 shares
of Common Stock of the par value of $1.00 per share and 6,000,000
shares of Preferred Stock, consisting of 10,000 shares without par
value and 5,990,000 shares of the par value of $1.00 per share. The
designations and the powers, preferences and rights, and the
qualifications, limitations and restrictions thereof, of each of the
classes of stock of the Corporation are as follows:
A. Common Stock. Each holder of Common Stock shall be entitled
to one (1) vote for each such share of Common Stock.
B. Preferred Stock. The Preferred Stock shall be issued from
time to time in one or more series with such distinctive serial
designations and (a) may have such voting powers, full or limited, or
may be without voting powers; (b) may be subject to redemption at such
time or times and at such price or prices; (c) may be entitled to
receive dividends (which may be cumulative or noncumulative) at such
rate or rates, on such conditions, and at such times, and payable in
preference to, or in such relation to, the dividends payable on any
other class or classes of stock; (d) may have such rights upon the
dissolution of, or upon any distribution of the assets of, the
Corporation; (e) may be made convertible into, or exchangeable for,
shares of any other class or classes or of any other series of the
same or any other class or classes of stock of the Corporation, at
such price or prices or at such rates of exchange and with such
adjustments; and (f) shall have such other relative, participating,
optional or other special rights, qualifications, limitations or
restrictions thereof, all as shall hereafter be stated and expressed
in the resolution or resolutions providing for the issue of such
Preferred Stock from time to time adopted by the Board of Directors
pursuant to authority so to do which is hereby expressly vested in the
Board.
C. Increase in Authorized Shares. The number of authorized
shares of any class of stock of the Corporation may be increased by
the affirmative vote of a majority of the stock of the Corporation
entitled to vote thereon, without a vote by class or by series.
FIFTH: The name and mailing address of the incorporator of the
Corporation is as follows:
Name Address
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Lori E. Simon . . . . . . Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
SIXTH: A. The Board of Directors shall be divided into three
classes (which at all times shall be as nearly equal in number as
possible). The initial term of office of the first class ("Class I")
shall expire at the 1988 annual meeting of stockholders, the initial
term of office of the second class ("Class II") shall expire at the
1989 annual meeting of stockholders, and the initial term of office of
the third class ("Class III") shall expire at the 1990 annual meeting
of stockholders. At each annual meeting of stockholders following
such initial classification, directors elected to succeed those
directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after
their election. The foregoing notwithstanding, each director shall
serve until his successor shall have been duly elected and qualified,
unless he shall cease to serve by reason of death, resignation or
other cause. If the number of directors is changed, any increase or
decease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible, but in
no case shall a decrease in the number of directors shorten the term
of any incumbent director.
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B. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, and the Board of
Directors shall determine the rights, powers, duties, rules and
procedures that shall affect the power of the Board of Directors to
manage and direct the business and affairs of the Corporation.
C. Newly created directorships resulting from any increase in
the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation or other cause may be
filled only by a majority vote of the directors then in office, though
less than a quorum, or by a sole remaining director. Any director so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which he has
been elected expires.
D. The provisions set forth in paragraphs A and C of this
Article SIXTH are subject to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under
specified circumstances as set forth in this Restated Certificate of
Incorporation or in a resolution providing for the issuance of such
stock adopted by the Board of Directors pursuant to authority vested
in it by this Restated Certificate of Incorporation.
E. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article SIXTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article SIXTH be
adopted, unless such action is approved by the affirmative vote of the
holders of at least 75% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article SIXTH as one class.
SEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized
to make, alter or repeal the By-Laws of the Corporation.
EIGHTH: A. Subject to the rights of holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional directors under
specified circumstances as set forth in this Restated Certificate of
Incorporation or in a resolution providing for the issuance of such
stock adopted by the Board of Directors pursuant to authority vested
in it by this Restated Certificate of Incorporation, nominations for
the election of directors may be made by the Board of Directors or by
a committee appointed by the Board of Directors, or by any stockholder
entitled to vote in the election of directors generally provided that
such stockholder has given actual written notice of such stockholders'
intent to make such nomination or nominations to the Secretary of the
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Corporation not later than (1) with respect to an election to be held
at an annual meeting of stockholders, 90 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders, and
(2) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on
the seventh day following (a) the date on which notice of such meeting
is first given to stockholders or (b) the date on which public
disclosure of such meeting is made, whichever is earlier.
B. Each such notice shall set forth: (1) the name and address
of the stockholder who intends to make the nomination and of the
person or persons to be nominated; (2) a representation that the
stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
(3) a description of all arrangements or understandings involving any
two or more of the stockholders, each such nominee and any other
person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder or
relating to the Corporation or its securities or to such nominee's
service as a director if elected; (4) such other information regarding
each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (5) the
consent of each nominee to serve as a director of the Corporation if
so elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedure.
C. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article EIGHTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article EIGHTH
be adopted, unless such action is approved by the affirmative vote of
the holders of at least 75% of the total voting powers of all shares
of stock of the Corporation entitled to vote in the election of
directors generally, considered for purposes of this Article EIGHTH as
one class.
NINTH: A. Any action required or permitted to be taken by
the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may
not be effected by any consent in writing by such stockholders.
B. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation,
this Article NINTH may not be amended, altered or repealed in any
respect, nor may any provision inconsistent with this Article NINTH be
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adopted, unless such action is approved by the affirmative vote of the
holders of at least 75% of the total voting power of all shares of
stock of the Corporation entitled to vote in the election of directors
generally, considered for purposes of this Article NINTH as one class.
TENTH: A. Notwithstanding any other provision of this
Restated Certificate of Incorporation and in addition to any
affirmative vote which may be otherwise required, no Business
Combination shall be effected or consummated except as expressly
provided in paragraph B of this Article TENTH, unless such Business
Combination has been approved by the affirmative vote of the holders
of at least 75% of the Voting Shares.
B. The provisions of Article TENTH shall not apply to any
Business Combination if:
1. The Business Combination has been approved by a
resolution adopted by a majority of those members of the Board of
Directors who are not Interested Directors with respect to the
Business Combination; or
2. All of the following conditions have been met: (a) the
aggregate amount of the cash and the Fair Market Value of Other
Consideration to be received for each share of Common Stock in
the Business Combination by holders thereof is not less than the
higher of: (i) the highest per share price (including any
brokerage commissions, transfer taxes, soliciting dealer's fees,
dealer-management compensation and similar expenses) paid or
payable by an Interested Party with an interest in the Business
Combination to acquire beneficial ownership of any shares of
Common Stock within the two-year period immediately prior to the
first public announcement of the proposed Business Combination
(the "Announcement Date"), or (ii) the highest market price per
share of the Common Stock on the Announcement Date or on the date
on which the Interested Party became an Interested Party,
whichever is higher; (b) the consideration to be received in the
Business Combination by holders of Common Stock other than an
Interested Party with an interest in the Business Combination
shall be either in cash or in the same form used by an Interested
Party with an interest in the Business Combination to acquire the
largest number of shares of Common Stock acquired by all
Interested Parties with an interest in the Business Combination
from one or more persons who are not Interested Parties with an
interest in the Business Combination; and (c) at the record date
for the determination of stockholders are entitled to vote on the
proposed Business Combination, there shall be one or more
directors of the Corporation who are not Interested Directors
with respect to the Business Combination.
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C. For purposes of this Article TENTH.
1. An "Associate" of a specified person is (a) a person
that, directly or indirectly (i) controls, is controlled by, or
is under common control with, the specified person, (ii) is the
beneficial owner of 10% or more of any class of the equity
securities of the specified person, or (iii) has 10% or more of
any class of its equity securities beneficially owned, directly
or indirectly, by the specified person; (b) any person (other
than the Corporation or a Subsidiary) of which the specified
person is an officer, director, partner or other official and any
officer, director, partner or other official of the specified
person; (c) any trust or estate in which the specified person
serves as trustee or in a similar fiduciary capacity, or any
trustee or similar fiduciary of the specified person; and (d) any
relative or spouse who has the same home as the specified person
or who is an officer or director of any person (other than the
Corporation or a Subsidiary), directly or indirectly,
controlling, controlled by or under common control with the
specified person. No director of the Corporation, however, shall
be deemed to be an Associate of any other director of the
Corporation by reason of such service as a director or by
concurrence in any action of the Board of Directors.
2. "Beneficial Ownership" of any Voting Shares shall be
determined pursuant to Rule 13d-3 under the Securities Exchange
Act of 1934 as in effect on the date on which this Article TENTH
is approved by the stockholders of the Corporation, provided,
however, that a person shall in any event, be the beneficial
owner of any Voting Shares; (a) which such person, or any of such
person's Associates, beneficially owns, directly or indirectly;
(b) which such person or any of such person's Associates,
directly or indirectly, (i) has the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding;
or upon the exercise of conversion rights, exchange rights,
warrants or options; or pursuant to the power to revoke a trust,
discretionary account or other arrangement; or (ii) has or shares
the power, or has the right to acquire (whether such right is
exercisable immediately or only after the passage of time) the
exclusive or shared power, to vote or direct the vote pursuant to
any agreement, arrangement, relationship or understanding; or
pursuant to the power to revoke a trust, discretionary account or
other arrangement; or (c) which are beneficially owned, directly
or indirectly, by any other person with which such first-
mentioned person or any of its Associates has any agreement,
arrangement or understanding, or is acting in concert with
respect to acquiring, holding, voting or disposing of any Voting
Shares; provided, however, that no director of the Corporation
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shall be deemed to be acting in concert with any other director
of the Corporation by reason of such service as a director or by
concurrence in any action of the Board of Directors.
3. "Business Combination" shall mean: (a) any merger or
consolidation of the Corporation or any Subsidiary with or into
any Interested Party or any Associate or an Interested Party; (b)
any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one or a series of related transactions) of all
or any Substantial Part of the Consolidated Assets of the
Corporation to or with any Interested Party or any Associate of
an Interested Party; (c) any issuance, sale, exchange, transfer
or other disposition by the Corporation or any Subsidiary (in one
or a series of related transactions) of any securities of the
Corporation or any Subsidiary to or with any Interested Party or
any Associate of an Interested Party; or (d) any spin-off, split-
up, reclassification of securities (including any reverse stock
split), recapitalization, reorganization, liquidation or
dissolution of the Corporation with any Subsidiary or any other
transaction involving the Corporation or any Subsidiary (whether
or not with or otherwise involving an Interested Party) that has
the effect, directly or indirectly, of increasing the
proportionate interest of any Interested Party or any Associate
of an Interested Party in the equity securities or assets of the
Corporation or any Subsidiary.
4. "Fair Market Value" means: (a) in the case of stock, the
average closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the
Composite Tape for the New York Stock Exchange Listed Stocks, or,
if such stock is not quoted on the Composite Tape on the New York
Stock Exchange, or, if such stock is not listed on such exchange,
on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such exchange, the
average closing bid quotation with respect to a share of such
stock during the 30-day period immediately preceding the date in
question on the National Association of Securities Dealers, Inc.
Automated Quotation System or any system then in use, provided
that, if no such prices or quotations are available, or if a
majority of those members of the Board of Directors who are not
Interested Directors with respect to the Business Combination
determine that such prices or quotations do not represent fair
market value, the Fair Market Value of such stock shall be
determined pursuant to clause (b) below; and (b) in the case of
property other than cash or stock, or in the case of stock as to
which Fair Market Value is not determined pursuant to clause (a)
above, the Fair Market Value on the date in question as
determined by a majority of those members of the Board of
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Directors who are not Interested Directors with respect to the
Business Combination. In making any such determination, the
Board of Directors may, but shall not be required to, engage the
services of an Investing Banking Firm.
5. "Interested Director" shall mean each director of the
Corporation who (a) is an Interested Party or an Associate of an
Interested Party; (b) has an Associate who is an Interested
Party; (c) was nominated or proposed to be elected as a director
of the Corporation by an Interested Party or an Associate of an
Interested Party; or (d) is, or has been nominated or proposed to
be elected as, an officer, director or employee of an Interested
Party or of an Associate of an Interested Party.
6. "Interested Party" shall mean any person (other than
the Corporation or a Subsidiary) that is the beneficial owner,
directly or indirectly, of 5% or more of the Voting Shares (a) in
connection with determining the required vote by stockholders on
any Business Combination, as of any of the following dates: the
record date for the determination of stockholders entitled to
notice of or to vote on such Business Combination or immediately
prior to the consummation of any such Business Combination or the
adoption by the Corporation of any plan or proposal with respect
thereto; (b) in connection with determining the required vote by
stockholders on any amendment, alteration or repeal of, or
adoption of a provision inconsistent with, this Article TENTH
pursuant to paragraph E of this Article TENTH, as of the record
date for the determination of stockholders entitled to notice and
to vote on such amendment, alteration, repeal or inconsistent
provision; and (c) in connection with determining whether a
director is an "Interested Director" in respect of any
determination made by the Board of Directors pursuant to
paragraph D of this Article TENTH, as of the date at which the
vote on such recommendation or determination is being undertaken,
or as close as is reasonably practicable to such date.
7. An "Investment Banking Firm" shall mean an investment
banking firm that has not previously been associated with any
Interested Party with an interest in the Business Combination,
which is selected by a majority of the directors of the
Corporation who are not Interested Directors with respect to the
Business Combination, engaged solely on behalf of the holders of
Common Stock other than Interested Parties with an interest in
the Business Combination, and paid a reasonable fee for its
services.
8. "Other Consideration" shall include (without
limitation) Common Stock and/or any other class or series of
stock of the Corporation retained by stockholders of the
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Corporation in the event of a Business Combination in which the
Corporation is the surviving corporation.
9. A "Person" shall include (without limitation) any
natural person, corporation, partnership, trust or other entity,
organization or association, or any two or more persons acting in
concert or as a syndicate, joint venture or group.
10. "Subsidiary" shall mean any corporation of which a
majority of any class of equity securities is owned, directly or
indirectly, by the Corporation; provided, however, that for
purposes of paragraph C.6 of this Article TENTH, the term
"Subsidiary" shall mean only a corporation of which a majority of
each class of equity securities is owned, directly or indirectly,
by the Corporation.
11. "Substantial Part of the Consolidated Assets" of the
Corporation shall mean assets of the Corporation and/or any
Subsidiary having a book value (determined in accordance with
generally accepted accounting principles) in excess of 10% of the
book value (determined in accordance with generally accepted
accounting principles) of the total consolidated assets of the
Corporation and all Subsidiaries which are consolidated for
public financial reporting purposes, at the end of its most
recent quarterly fiscal period ending prior to the time the
determination is made for which financial information is
available.
12. "Voting Shares" shall mean the outstanding shares of
all classes of stock of the Corporation entitled to vote for the
election of directors generally, considered for purposes of this
Article TENTH as one class. "Voting Shares" shall include shares
deemed owned by any Interested Party or any Associate of an
Interested Party through application of paragraph C.2 of this
Article TENTH, but shall not include any other shares which may
be issuable based upon a right to acquire such shares (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding,
or upon the exercise of conversion rights, exchange rights,
warrants or options, or pursuant to the power to revoke a trust,
discretionary account, or other arrangement or otherwise.
D. A majority of those members of the Board of Directors who
are not Interested Directors with respect to the Business Combination
shall have the power and duty to interpret the provisions of this
Article TENTH and to make all determinations to be made under this
Article TENTH. Any such interpretation or determination shall be
conclusive and binding for all purposes of this Article TENTH.
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E. In addition to the voting requirements imposed by law or by
any other provision of this Restated Certificate of Incorporation, the
provisions set forth in this Article TENTH may not be amended, altered
or repealed in any respect, nor may any provision inconsistent with
this Article TENTH be adopted, unless such action is approved by the
affirmative vote of the holders of at least 75% of the Voting Shares.
F. Nothing contained in this Article TENTH shall be construed
to relieve any Interested Party from any fiduciary obligation imposed
by law.
ELEVENTH: Except as otherwise provided in this Restated
Certificate of Incorporation, the Board of Directors shall have
authority to authorize the issuance, from time to time without any
vote or other action by the stockholders, of any or all shares of
stock of the Corporation of any class at any time authorized, any
securities convertible into or exchangeable for any such shares so
authorized, and any warrant, option or right to purchase, subscribe
for or otherwise acquire, shares of stock of the Corporation of any
class at any time authorized, in each case to such persons and for
such consideration and on such terms as the Board of Directors from
time to time in its discretion lawfully may determine; provided,
however, that the consideration for the issuance of shares of stock of
the corporation having par value shall not be less than such par
value. Stock so issued, for which the consideration has been paid to
the Corporation, shall be fully paid stock, and the holders of such
stock shall not be liable to any further call or assessments thereon.
TWELFTH: No holder of stock of any class of the Corporation or
of any security convertible into, or of any warrant, option or right
to purchase, subscribe for or otherwise acquire, stock of any class of
the Corporation, whether now or hereafter authorized, shall, as such
holder, have any pre-emptive right whatsoever to purchase, subscribe
for or otherwise acquire, stock of any class of the Corporation or any
security convertible into, or any warrant, option or right to
purchase, subscribe for or otherwise acquire, stock of any class of
the Corporation, whether now or hereafter authorized.
THIRTEENTH: Anything herein contained to the contrary
notwithstanding, any and all right, title, interest, and claim in or
to any dividends declared, or other distributions made, by the
Corporation, whether in cash, stock or otherwise, which are unclaimed
by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and be deemed to
be extinguished and abandoned; and such unclaimed dividends or other
distributions in the possession of the Corporation, its transfer
agents or other agents or depositaries, shall at such time become the
absolute property of the Corporation, free and clear of any and all
claims of any persons whatsoever.
- 10 -
FOURTEENTH: A. The Corporation shall indemnify any person 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) by reason of the fact that he
is or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another
Corporation, partnership, joint venture, trust or other enterprise, or
by reason of any action alleged to have been taken or omitted in such
capacity, against costs, charges and other expenses (including
attorneys' fees) ("Expenses"), judgments, fines and amount paid in
settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding and any appeal thereof if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. For purposes of this Article, "serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise" shall include any service by a director or officer of the
Corporation as a director, officer, employee, agent or fiduciary of
such other Corporation, partnership, joint venture, trust or other
enterprise, or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Corporation or any such other
enterprise.
B. The Corporation shall indemnify any person 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 he is or
was or has agreed to become a director or officer of the Corporation
or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another Corporation,
partnership, joint venture, trust or other enterprise or by reason of
any action alleged to have been taken or omitted in such capacity
against Expenses actually and reasonably incurred by him in connection
with the investigation, defense or settlement of such action or suit
and any appeal thereof if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
- 11 -
have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such Expenses which the Court of Chancery of
Delaware or such other court shall deem proper.
C. To the extent that any person referred to in paragraphs (A)
or (B) of this Article has been successful on the merits or otherwise,
including, without limitation, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to
therein or in defense of any claim, issue or matter therein, he shall
be indemnified against Expenses actually and reasonably incurred by
him in connection therewith.
D. Any indemnification under paragraphs (A) or (B) of this
Article (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct
set forth in paragraphs (A) or (B). Such determination shall be made
(i) by the board of directors by a majority vote of a quorum (as
defined in the By-Laws of the Corporation) consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
E. Expenses incurred in defending a civil or criminal action,
suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding and appeal upon
receipt by the Corporation of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Corporation.
F. The determination of the entitlement of any person to
indemnification under paragraphs (A), (B) or (C) or to advancement of
Expenses under paragraph (E) of this Article shall be made promptly,
and in any event within 60 days after the Corporation has received a
written request for payment from or on behalf of a director or officer
and payment of amounts due under such sections shall be made
immediately after such determination. If no disposition of such
request is made within said 60 days or if payment has not been made
within 10 days thereafter, or if such request is rejected, the right
to indemnification or advancement of Expenses provided by this Article
shall be enforceable by or on behalf of the director or officer in any
court of competent jurisdiction. In addition to the other amounts due
- 12 -
under this Article, Expenses incurred by or on behalf of a director or
officer in successfully establishing his right to indemnification or
advancement of Expenses, in whole or in part, in any such action (or
settlement thereof) shall be paid by the Corporation.
G. The indemnification and advancement of Expenses provided by
this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of Expenses may be
entitled under any law (common or statutory), By-Law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office, or while employed by or acting as a
director or officer of the Corporation or as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise, and shall continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding the
provisions of this Article, the Corporation shall indemnify or make
advancement of Expenses to any person referred to in paragraphs (A) or
(B) of this Article to the full extent permitted under the laws of
Delaware and any other applicable laws, as they now exist or as they
may be amended in the future.
H. All rights to indemnification and advancement of Expenses
provided by this Article shall be deemed to be a contract between the
Corporation and each director or officer of the Corporation who
serves, served or has agreed to serve in such capacity, or at the
request of the Corporation as director or officer of another
corporation, partnership, joint venture, trust or other enterprise, at
any time while this Article and the relevant provisions of the
Delaware General Corporation Law or other applicable law, if any, are
in effect. Any repeal or modification of this Article, or any repeal
or modification of relevant provisions of the Delaware General
Corporation Law or any other applicable law, shall not in any way
diminish any rights to indemnification of or advancement of Expenses
to such director or officer or the obligations of the Corporation.
I. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was or has agreed to
become a director or officer of the Corporation, or is or was serving
or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article.
J. The Board of Directors may, by resolution, extend the
provisions of this Article pertaining to indemnification and
- 13 -
advancement of Expenses to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding by reason of the fact that he is or was or
has agreed to become an employee, agent or fiduciary of the
Corporation or is or was serving or has agreed to serve at the request
of the Corporation as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or
other enterprise or with respect to any employee benefit plan (or its
participants or beneficiaries) of the corporation or any such other
enterprise.
K. The invalidity or unenforceability of any provision of this
Article shall not affect the validity or enforceability of the
remaining provisions of this Article.
FIFTEENTH: No person who was or is a director of this
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for breach of the duty of loyalty
to the Corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or knowing
violation of law; (iii) under Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General
Corporation Law is amended after the effective date of this Article to
further eliminate or limit, or to authorize further elimination or
limitation of, the personal liability of directors for breach of
fiduciary duty as a director, then the personal liability of a
director to this Corporation or its stockholders shall be eliminated
or limited to the full extent permitted by the Delaware General
Corporation Law, as so amended. For purposes of this Article,
"fiduciary duty as a director" shall include any fiduciary duty
arising out of serving at the request of this Corporation as a
director of another corporation, partnership, joint venture, trust or
other enterprise, and "personally liable to the Corporation" shall
include any liability to such other Corporation, partnership, joint
venture, trust or other enterprise, and any liability to this
Corporation in its capacity as a security holder, joint venturer,
partner, beneficiary, creditor or investor of or in any such other
corporation, partnership, joint venture, trust or other enterprise.
Any repeal or modification of the foregoing paragraph by the
stockholders of this Corporation shall not adversely affect the
elimination or limitation of the personal liability of a director for
any act or omission occurring prior to the effective date of such
repeal or modification. This provision shall not eliminate or limit
the liability of a director for any act or omission occurring prior to
the effective date of this Article.
- 14 -
SIXTEENTH: Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware may,
on the application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any receiver
or receivers appointed for this Corporation under the provisions of
section 291 of Title 8 of the Delaware Code or on the application of
trustees in dissolution or of any receiver or receivers appointed for
this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the
said court directs. If a majority in number representing three-
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case
may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as consequence of such compromise
or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of
this Corporation, as the case may be, and also this Corporation.
SEVENTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate
of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon the stockholders herein are
granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in
Articles SIXTH, EIGHTH, NINTH, and TENTH may not be amended, altered
or repealed in any respect nor may any provision inconsistent with any
of such Articles be adopted unless such amendment, alteration, repeal
or inconsistent provision is approved as specified in each such
respective Article.
3. This Restated Certificate of Incorporation was duly
authorized by a resolution duly adopted and approved by consent of the
sole Director, dated as of May 1, 1987, the Corporation not yet having
received payment for any of its stock, in accordance with the
provisions of Section 241 and Section 245 of the General Corporation
Law of the State of Delaware.
- 15 -
IN WITNESS WHEREOF, New Newell Co. has caused this Restated
Certificate of Incorporation to be signed by William T. Alldredge, its
Vice President-Finance, and attested by Roland E. Knecht, its
Secretary this 18th day of May, 1987.
NEW NEWELL CO.
William T. Alldredge
Vice President-Finance
ATTEST:
Roland E. Knecht
Secretary
- 16 -
Filed June 23, 1987 at 9:01 a.m.
877174060 Delaware Secretary of State
CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR THE
POWERS DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED CERTIFICATE
OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
CUMULATIVE PREFERRED STOCK
($2,000 Stated Value)
of
--
NEW NEWELL CO.
-------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
--------------------------
The undersigned DOES HEREBY CERTIFY that the following resolution
was duly adopted by the written consent of the sole director of New
Newell Co., a Delaware corporation, on May 18, 1987:
RESOLVED by the Board of Directors of New Newell Co., a Delaware
corporation (the "Corporation"), that, pursuant to authority expressly
granted to it by the Restated Certificate of Incorporation of the
Corporation, a total of 7,500 shares of the preferred stock without
par value, of the Corporation are hereby respectively constituted as
Series 1 Cumulative Preferred Stock, Series 2 Cumulative Preferred
Stock, Series 3 Cumulative Preferred Stock, Series 4 Cumulative
Preferred Stock and Series 5 Cumulative Preferred Stock, with an
aggregate stated value of $15,000,000 (hereinafter called "Cumulative
Preferred Stock"). Each series of such Cumulative Preferred Stock
shall consist of 1,500 shares, with a stated value of $2,000 per
share. Shares of Cumulative Preferred Stock shall be issued only upon
effectiveness of the merger of Newell Co., a Delaware corporation, and
Newell Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Corporation (the "Merger"). The preferences and the
relative, participating, optional and other special rights of the
shares of Cumulative Preferred Stock and the qualifications,
limitations or restrictions thereof, shall be as follows:
1. CUMULATIVE DIVIDENDS. (a) The holders of record of shares of
each series of Cumulative Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors out of funds
- 17 -
Legally available for the payment thereof, cumulative cash dividends
at the rate specified in subsection (b) below, and no more. The
holders of shares of Cumulative Preferred Stock shall not be entitled
to any dividends other than the cash dividends provided for in this
section. Dividends shall accrue daily from the date of issuance,
whether or not earned or declared, and shall be payable quarterly on
such dates as the Board of Directors may from time to time determine.
The dividends shall be in preference to dividends upon any stock
(including common stock) of the Corporation ranking junior to the
Cumulative Preferred Stock as to dividends. If the Corporation has
not paid full dividends upon the shares of Cumulative Preferred Stock
for any preceding quarter, the Corporation shall declare and pay the
amount for payment, before declaring or paying any cash dividends on
the common stock of the Corporation. Accrued dividends on Cumulative
Preferred Stock shall not bear interest.
(b) The dividend rate for each series of Cumulative Preferred
Stock is as follows:
(i) For Series 1, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1989, after which
time the rate shall be $160 per share per annum.
(ii) For Series 2, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1990, after which
time the rate shall be $160 per share per annum.
(iii) For Series 3, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1991, after which
time the rate shall be $160 per share per annum.
(iv) For Series 4, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1992, after which
time the rate shall be $160 per share per annum.
(v) For Series 5, cash dividends shall accrue at the rate
of $100 per share per annum until September 24, 1993, after which
time the rate shall be $160 per share per annum.
2. LIQUIDATION. (a) In the event of a voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, the
holders of shares of Cumulative Preferred Stock shall be entitled to
receive out of the assets of the Corporation an amount equal to the
stated value per share plus an amount equal to any accrued and unpaid
dividends thereon to the date fixed for distribution. This
distribution shall be in preference to any such distribution upon any
stock (including common stock) of the Corporation ranking junior to
Cumulative Preferred Stock as to liquidation preferences, but subject
to the prior rights of the holders of shares of all stock ranking
- 18 -
senior to Cumulative Preferred Stock as to liquidation preferences.
If the assets of the Corporation are not sufficient to pay the full
amounts to the holders of Cumulative Preferred Stock and all other
series of preferred stock of the Corporation ranking equally with the
shares of Cumulative Preferred Stock as to liquidation preferences,
then the holders of Cumulative Preferred Stock and of such other
series shall share ratably in the distribution of any assets remaining
after distribution to holders of stock ranking senior to Cumulative
Preferred Stock as to liquidation preferences.
(b) Nothing in this section, however, shall be deemed to prevent
the Corporation from redeeming or purchasing Cumulative Preferred
Stock as permitted by Section 3.
(c) A merger or consolidation of the Corporation with any other
corporation or a sale, lease, or conveyance of assets or a business
combination involving the Corporation or any related or similar
transaction shall not be considered a liquidation, dissolution, or
winding up the Corporation within the meaning of this section.
3. REDEMPTION. (a) The Corporation may redeem any or all
shares of one or more series of Cumulative Preferred Stock at its
option by resolution of the Board of Directors, at any time and from
time to time on or after issuance, in cash, at the stated value of the
shares plus an amount equal to any accrued and unpaid dividends
thereon to the date fixed for redemption. In the event that the
Corporation redeems less than the entire number of shares of any
series of Cumulative Preferred Stock outstanding at any one time, the
Corporation shall select the shares to be redeemed by lot or pro rata
or by any other manner that the Board of Directors deems equitable.
No less than 20 nor more than 120 days prior to the date fixed for any
entire or partial redemption of Cumulative Preferred Stock, the
Corporation shall mail a notice of the redemption to the holders of
record of the shares to be redeemed at their addresses as they appear
on the books of the Corporation. The notice shall state the time and
place of redemption and shall identify the particular shares to be
redeemed if less than all of the outstanding shares are to be
redeemed. Failure to mail a notice or a defect in a notice or its
mailing shall not affect the validity of the redemption proceedings.
(b) On or before the date fixed for redemption each holder of
shares of Cumulative Preferred Stock called for redemption shall
surrender his certificate representing his shares to the Corporation
or its agent at the place designated in the redemption notice. If the
Corporation redeems less than all of the shares represented by a
surrendered certificate, the Corporation shall issue a new certificate
representing the unredeemed shares. If the Corporation has duly given
notice of redemption and if funds necessary for the redemption are
available on the redemption date, then notwithstanding that any holder
- 19 -
has not surrendered his certificate representing shares called for
redemption, all rights with respect to those shares shall cease and
determine immediately after the redemption date, except that such a
holder shall have the right to receive the redemption price without
interest upon surrender of his certificate.
(c) The Corporation may, at its option at any time after giving
a notice of redemption, deposit a sum sufficient to redeem the shares
called for redemption, plus any accrued and unpaid dividends thereon
to the redemption date, with any bank or trust company in the City of
Chicago, Illinois, or in the City of Minneapolis, Minnesota, having
capital, surplus, and undivided profits aggregating at least
$50,000,000 as a trust fund with irrevocable instructions and
authority to the bank or trust company to mail notice of redemption if
the Corporation has not begun or completed such mailing at the time of
the deposit and to pay, on and after the date fixed for redemption or
prior thereto, the redemption price of the shares to their respective
holders upon the surrender of their share certificates. From the date
the Corporation makes such a deposit, the shares designated for
redemption shall be treated as redeemed and no longer outstanding, and
no dividends shall accrue on the shares after the date fixed for
redemption. The deposit shall be deemed to constitute full payment of
the shares to their holders. From the date of the deposit, the
holders of the shares shall cease to be stockholders with respect to
the shares; they shall have no interest in or claim against the
Corporation by virtue of the shares; and they shall have no rights
with respect to the shares except the right to receive from the bank
or trust company payment of the redemption price of the shares,
without interest, upon surrender of their certificates. At the
expiration of five years after the redemption date, the bank or trust
company shall pay over to the Corporation any funds then remaining on
deposit, free of trust. Thereafter the holders of certificates for
the shares shall have no claims against the bank or trust company, but
only claims as unsecured creditors against the Corporation for amounts
equal to their pro rata portions of the funds paid over, without
interest, subject to compliance by the holders with the terms of the
redemption. Any interest on or other accretions to funds deposited
with the bank or trust company shall belong to the Corporation.
(d) Nothing in this Resolution shall prevent or restrict the
Corporation from purchasing, from time to time, at public or private
sale, any or all of the Cumulative Preferred Stock at whatever prices
the Corporation may determine, but at prices not exceeding those
permitted by Delaware law.
(e) Nothing in this Resolution shall give any holder of
Cumulative Preferred Stock the right to require the Corporation to
redeem any or all shares of the Stock.
- 20 -
4. CONVERSION. The Cumulative Preferred Stock is not
convertible into any other class or series of common or preferred
stock of the Corporation.
5. STATUS OF REACQUIRED STOCK. The Corporation shall retire
and cancel any shares of Cumulative Preferred Stock that it redeems,
purchases, or acquires. Such shares thereafter shall have the status
of authorized but unissued shares of preferred stock. Subject to the
limitations in this Resolution or in any resolutions adopted by the
Board of Directors providing for the reissuance of the shares, the
Corporation may reissue the shares as shares of Cumulative Preferred
Stock or may reclassify and reissue them as preferred stock of any
class or series other than Cumulative Preferred Stock.
6. VOTING RIGHTS. (a) Except as otherwise provided herein or
as may be required by law, the holders of Cumulative Preferred Stock
shall be entitled to one vote per share on every question submitted to
holders of record of the common stock of the Corporation, voting
together with the common stock of the Corporation as a single class.
(b) Notwithstanding the foregoing, (i) without the affirmative
vote or consent of at least a majority of the shares of Cumulative
Preferred Stock then outstanding voting as a separate class, the
Corporation shall not amend the Restated Certificate of Incorporation
if the amendment would alter or change the powers, preferences, or
special rights of the shares of Cumulative Preferred Stock so as to
affect them adversely, provided that this clause "(i)" shall not apply
to an increase or decrease (but not below the number of shares thereof
then outstanding) in the number of authorized shares of any class or
classes of stock; and (ii) so long as at least 3,100 shares of
Cumulative Preferred Stock are outstanding, without the affirmative
vote or consent of the holders of at least a majority of the shares of
Cumulative Preferred Stock then outstanding voting as a separate
class, the Corporation shall not issue any stock ranking senior to the
Cumulative Preferred Stock with respect to the payment of dividends or
the distribution of assets upon liquidation, except that the
Corporation may issue such stock if the consideration therefor
consists of cash. For purposes of any vote required pursuant to
clause (i) of this subsection (b) if any proposed amendment would
alter or change the powers, preferences, or special rights of one or
more of Series 1, 2, 3, 4, or 5 of Cumulative Preferred Stock so as to
affect them adversely but shall not so affect the entire class, then
only the shares of the series so affected by the amendment shall be
considered a separate class.
7. NO OTHER RIGHTS. The shares of Cumulative Preferred Stock
shall not have any relative, participating, optional or other special
rights or powers other than as set forth above and in the Restated
Certificate of Incorporation of the Corporation.
- 21 -
IN WITNESS WHEREOF, New Newell Co. has caused this resolution to
be signed by William T. Alldredge, its Vice President - Finance, and
attested by Roland E. Knecht, its Secretary, this 22nd day of June,
1987.
NEW NEWELL CO.
William T. Alldredge,
Vice President - Finance
ATTEST:
Roland E. Knecht,
Secretary
- 22 -
Filed July 2, 1987 at 9:29 a.m.
877183082 Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW NEWELL CO.
-----------------------------------------------------------
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
------------------------------------------------------------
New Newell Co., a corporation existing under the laws of the
State of Delaware, does hereby certify as follows:
FIRST: That Article First of the Restated Certificate of
Incorporation of the Corporation has been amended in its entirety to
read as follows:
FIRST: The name of the Corporation is NEWELL CO.
SECOND: That the foregoing amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the written consent of the holder of all outstanding
shares entitled to vote.
- 23 -
IN WITNESS WHEREOF, New Newell Co. has caused this Certificate to
be signed and attested by its duly authorized officers this 30th day
of June 1987.
NEW NEWELL CO.
By: /s/ William T. Alldredge
--------------------------
Vice President - Finance
Attest:
/s/ Roland E. Knecht
-----------------------------
Secretary
- 24 -
Filed October 31, 1988 at 9:00 a.m.
688305050 Delaware Secretary of State
CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR THE
POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL
OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED CERTIFICATE
OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
JUNIOR PARTICIPATING PREFERRED STOCK, SERIES B
of
NEWELL CO.
----------------------------------------
Pursuant to Section 151 of the
General Corporation Law of
the State of Delaware
----------------------------------------
NEWELL CO., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was
adopted by the Board of Directors of the Corporation as required by
Section 151 of the General Corporation Law at a meeting duly called
and held on October 20, 1988:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter
called the "Board of Directors" or the "Board") in accordance with the
provisions of the Corporation's Restated Certificate of Incorporation,
the Board of Directors hereby creates a series of Preferred Stock, par
value $1.00 per share (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the
relative rights, preferences and limitations of such series, as
follows:
Junior Participating Preferred Stock, Series B:
Section 1. Designation and Amounts. The shares of such
series shall be designated as "Junior Participating Preferred Stock,
Series B" (the "Series B Preferred Stock") and the number of shares
constituting the Series B Preferred Stock shall be 500,000. Such
number of shares may be increased or decreased by resolution of the
Board; provided, that no decrease shall reduce the number of shares of
Series B Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
- 25 -
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series B Preferred Stock with respect
to dividends, the holders of shares of Series B Preferred Stock,
in preference to the holders of Common Stock, par value $1.00 per
share (the "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the first
day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series B Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $15 or
(b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable
in kind) of all non-cash dividends or other distributions, other
than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series B Preferred Stock. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to which
holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
- 26 -
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $15 per share on the Series B Preferred Stock
shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares
of Series B Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series B Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of
Series B Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the number of votes per share to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
- 27 -
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock
or any similar stock, or by law, the holders of shares of Series
B Preferred Stock and the holders of shares of Common Stock and
any other capital stock of the Corporation having general voting
rights shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series B Preferred Stock shall have no special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series B Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preferred Stock; or
- 28 -
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock,
or any shares of stock ranking on a parity with the
Series B Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock
and may be reissued as part of a new series of Preferred Stock subject
to the conditions and restrictions on issuance set forth herein, in
the Corporation's Restated Certificate of Incorporation or in any
other Certificate of Designations creating a series of Preferred Stock
or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon
any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (A) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred Stock unless,
prior thereto, the holders of shares of Series B Preferred Stock shall
have received $10,000 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of
Series B Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of shares of Common Stock, or (B) to the holders
of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred
Stock, except distributions made ratably on the Series B Preferred
Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation
- 29 -
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under the proviso in clause (A) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series B Preferred Stock
shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series B Preferred
Stock shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of Series B Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series B Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of the Corporation's
Preferred Stock.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner
which would materially alter or change the powers, preferences or
- 30 -
special rights of the Series B Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least two-
thirds of the outstanding shares of Series B Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Corporation by its Chairman of the Board and
attested by its Secretary this 20th day of October 1988.
William T. Alldredge
Vice President - Finance
Attest:
Roland E. Knecht
Secretary
- 31 -
Filed September 13, 1989
Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEWELL CO.
------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------
We, William T. Alldredge, Vice President, and Roland E.
Knecht, Secretary, of Newell Co., a corporation existing under the
laws of the State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.,
formerly known as New Newell Co.
SECOND: That the date of filing the corporation's original
Certificate of Incorporation by the Secretary of State of Delaware was
the 23rd day of February, 1987, and that the Restated Certificate of
Incorporation of the corporation was filed by the Secretary of State
of Delaware on the 18th day of May, 1987.
THIRD: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is
110,000,000, consisting of 100,000,000 shares of
Common Stock of the par value of $1.00 per share
and 10,00,000 shares of Preferred Stock,
consisting of 10,000 shares without par value and
- 32 -
9,990,000 shares of the par value of $1.00 per
share.
FOURTH: That said amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding common and preferred stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this
28th day of June, 1989.
NEWELL CO.
William T. Alldredge
Vice President - Finance
ATTEST:
Roland E. Knecht
Secretary
- 33 -
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 05/15/1991
911355135 - 2118347
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL CO.
------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------
We, William T. Alldredge, Vice President and Roland E.
Knecht, Secretary, of Newell Co., a corporation existing under the
laws of the State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.
SECOND: That the date of filing the corporation's original
Certificate of Incorporation by the Secretary of State of Delaware was
the 23rd day of February, 1987, that the Restated Certificate of
Incorporation of the corporation was filed by the Secretary of State
of Delaware on the 18th day of May, 1987, a Certificate of Amendment
was filed by the Secretary of State of Delaware on the second day of
July, 1987, and a Certificate of Amendment was filed by the Secretary
of State of Delaware on 13th day of September, 1989.
THIRD: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is
- 34 -
310,000,000, consisting of 300,000,000 shares of
Common Stock of the par value of $1.00 per share
and 10,000,000 shares of Preferred Stock,
consisting of 10,000 shares without par value, and
9,990,000 shares of the par value of $1.00 per
share.
FOURTH: That said amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding common and preferred stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this 9th
day of May, 1991.
NEWELL CO.
William T. Alldredge
Vice President - Finance
ATTEST:
Roland E. Knecht
Secretary
- 35 -
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 06/11/1991
911625086 - 2118347
AMENDED CERTIFICATE OF DESIGNATIONS AS TO THE RESOLUTION PROVIDING FOR
THE POWERS, DESIGNATION, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS THEREOF, AS ARE NOT STATED AND EXPRESSED IN THE RESTATED
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
JUNIOR PARTICIPATING PREFERRED STOCK, SERIES B
of
NEWELL CO.
------------------------------
Pursuant to Section 151 of the General
Corporation Law of the
State of Delaware
------------------------------
NEWELL CO., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was
adopted by the Board of Directors of the Corporation as required by
Section 151 of the General Corporation Law at a meeting duly called
and held on February 14, 1991:
RESOLVED, that the first sentence of Section 1 of the
Certificate of Designations as to the resolution providing for the
powers, designation, preferences and relative, participating, optional
or other rights, and the qualifications, limitations or restrictions
thereof, as are not stated and expressed in the Restated Certificate
of Incorporation or in any amendment thereto, of the Junior
Participating Preferred Stock, Series B of Newell Co. (the
"Certificate of Designations") which was filed in the Office of the
Secretary of State of Delaware on October 31, 1988, is hereby amended
to read as follows:
The shares of such series shall be designated as
"Junior Participating Preferred Stock, Series B"
(the "Series B Preferred Stock") and the number of
shares constituting the Series B Preferred Stock
shall be 5,000,000.
- 36 -
IN WITNESS WHEREOF, this Amended Certificate of Designations
is executed on behalf of the Corporation by its Vice President-Finance
and attested by its Secretary this 5th day of June, 1991.
William T. Alldredge
Vice President - Finance
Attest:
Roland E. Knecht
Secretary
- 37 -
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 02:00 PM 11/03/1994
944211670 - 2118347
CERTIFICATE OF CHANGE OF REGISTERED AGENT
AND
REGISTERED OFFICE
* * * * *
Newell Co., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, DOES
HEREBY CERTIFY:
The present registered agent of the corporation is United States
Corporation Company and the present registered office of the
corporation is in the county of Kent.
The Board of Directors of
adopted the following resolution on the 2nd day of November, 1994.
Resolved, that the registered office of Newell Co. in the
state of Delaware be and it hereby is changed to Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle, and the authorization of the present
registered agent of this corporation be and the same is
hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall
be and is hereby constituted and appointed the registered
agent of this corporation at the address of its registered
office.
- 38 -
IN WITNESS WHEREOF, Newell Co. has caused this statement to be
signed by Richard H. Wolff, its Secretary*, this 25th day of October
1994.
/s/ Richard H. Wolff
-------------------------------
Secretary
_______________________________
(Title)
* Any authorized officer of the Chairman or Vice-Chairman of the
Board of Directors may execute this certificate.
- 39 -
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED MAY 11, 1995
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL CO.
------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
------------------------------
I, William T. Alldredge, Vice President-Finance of
Newell Co., a corporation existing under the laws of the State of
Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.,
formerly known as New Newell Co.
SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of said Corporation has been
amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is
410,000,000, consisting of 400,000,000 shares of
Common Stock of the par value of $1.00 per share
and 10,00,000 shares of Preferred Stock,
consisting of 10,000 shares without par value and
- 40 -
9,990,000 shares of the par value of $1.00 per
share.
THIRD: That said amendment has been duly adopted in
accordance with provisions of the General Corporation Law of the State
of Delaware by the affirmative vote of the holders of a majority of
all outstanding common and preferred stock entitled to vote at a
meeting of stockholders.
IN WITNESS WHEREOF, we have signed this certificate this
10th day of May, 1995.
NEWELL CO.
/s/ Dale L. Matschullat
-------------------------------
Dale L. Matschullat
Vice President
_______________________________
(Title)
- 41 -
Filed September 11, 1995 at 9:00 p.m.
Delaware Secretary of State
CERTIFICATE OF ELIMINATION
OF NEWELL CO.
I, Dale L. Matschullat, Vice President - General Counsel of
Newell Co., a corporation organized and existing under the General
Corporation Law of the State of Delaware, do hereby certify as
follows:
FIRST: That the Board of Directors of Newell Co. (the
"Corporation"), by resolutions adopted at a meeting on August 9, 1995,
determined to eliminate all of the Cumulative Preferred Stock,
Series 1, 2, 3, 4 and 5, of the Corporation, said resolutions being as
follows:
WHEREAS, the Corporation redeemed all of the
outstanding shares of Cumulative Preferred Stock,
Series 1, of the Corporation on November 8, 1989;
WHEREAS, the Corporation redeemed all of the
outstanding shares of Cumulative Preferred Stock,
Series 2, of the Corporation on September 24,
1990;
WHEREAS, the Corporation redeemed all of the
outstanding shares of Cumulative Preferred Stock,
Series 3, 4 and 5, of the Corporation on
September 24, 1991; and
WHEREAS, no shares of the Preferred Stock are
issued and outstanding and no shares will be
issued.
NOW, THEREFORE, BE IT RESOLVED, that the Preferred
Stock be returned to the status of "authorized but
not issued," and that the proper officers, or any
one of them acting alone, be, and each of them
hereby is, authorized and directed, in the name
and on behalf of the Corporation, to execute and
- 42 -
cause to filed with the Secretary of State of
Delaware, a Certificate of Elimination, and to
execute all other instruments and documents and to
do and cause to be done all such further acts and
things, as may be necessary or advisable to
eliminate the Preferred Stock and that all actions
of said officers are hereby ratified, approved and
confirmed in all respects.
SECOND: None of the authorized shares of the Preferred
Stock are outstanding and none will be issued.
THIRD: In accordance with the provisions of Section 151 of
the General Corporation Law of the State of Delaware, the Restated
Certificate of Incorporation is hereby amended to eliminate all
reference to the Preferred Stock, and the Preferred Stock shall be
returned to the status of "authorized but not issued."
IN WITNESS WHEREOF, I have signed this Certificate, this 7th
day of September, 1995.
NEWELL CO.
By: /s/ Dale L. Matschullat
-------------------------
Dale L. Matschullat
Vice President - General Counsel
- 43 -
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED MARCH 24, 1999
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEWELL CO.
Adopted in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware
I, Dale L. Matschullat, Vice President - General Counsel of
Newell Co., a corporation existing under the laws of the State of
Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is Newell Co.
SECOND: That Article First of the Restated Certificate of
Incorporation of the corporation, as heretofore amended, has been
amended in its entirety to read as follows:
FIRST: The name of the corporation is Newell
Rubbermaid Inc.
THIRD: That the foregoing amendment has been duly adopted
in accordance with provisions of the General Corporation Law of
the State of Delaware by the majority vote of all the outstanding
shares entitled to vote at a meeting of stockholders.
IN WITNESS WHEREOF, I have signed this certificate this 24th
day of March, 1999.
NEWELL CO.
By: /s/ Dale L. Matschullat
--------------------------------
Dale L. Matschullat
Vice President - General Counsel
Attest:
/s/ Richard H. Wolff
--------------------
Richard H. Wolff
Secretary
- 44 -
EXHIBIT 3.2
BY-LAWS
OF
NEWELL CO.
(a Delaware corporation)
(as amended March 24, 1999)
ARTICLE I
OFFICES
--------
1.1 Registered Office. The registered office of the Corporation
in the State of Delaware shall be located in the City of Dover and
County of Kent. The Corporation may have such other offices, either
within or without the State of Delaware, as the Board of Directors may
designate or the business of the Corporation may require from time to
time.
1.2 Principal Office in Illinois. The principal office of the
Corporation in the State of Illinois shall be located in the City of
Freeport and County of Stephenson.
ARTICLE II
STOCKHOLDERS
------------
2.1 Annual Meeting. The annual meeting of stockholders shall be
held each year at such time and date as the Board of Directors may
designate prior to the giving of notice of such meeting, but if no
such designation is made, then the annual meeting of stockholders
shall be held on the second Wednesday in May of each year for the
election of directors and for the transaction of such other business
as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the
next succeeding business day.
2.2 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Chairman, by the Board
of Directors or by the President.
2.3 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or for any special meeting called by
the Board of Directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the
principal office of the Corporation in the State of Illinois.
2.4 Notice of Meeting. Written notice stating the place, date
and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given
not less than ten nor more than sixty days before the date of the
meeting, or in the case of a merger or consolidation of the
Corporation requiring stockholder approval or a sale, lease or
exchange of substantially all of the Corporation's property and
assets, not less than twenty nor more than sixty days before the date
of meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in
the United States mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the Corporation. When
a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than thirty days, or unless, after
adjournment, a new record date is fixed for the adjourned meeting, in
either of which cases notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
2.5 Fixing of Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent (to the
extent permitted, if permitted) to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no record date is fixed, the
record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be the close of business on
the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day
on which the meeting is held, and the record date for determining
stockholders for any other purpose shall be the close of business on
the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new
record date for the adjourned meeting.
2.6 Voting Lists. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of
- 2 -
shares registered in his name, which list, for a period of ten days
prior to such meeting, shall be kept on file either at a place within
the city where the meeting is to be held and which place shall be
specified in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held, and shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, at any time during ordinary business hours. Such lists shall
also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list of
stockholders entitled to vote, or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders.
2.7 Quorum. The holders of shares of stock of the Corporation
entitled to cast a majority of the total votes that all of the
outstanding shares of stock of the Corporation would be entitled to
cast at the meeting, represented in person or by proxy, shall
constitute a quorum at any meeting of stockholders; provided, that if
less than a majority of the outstanding shares of capital stock are
represented at said meeting, a majority of the shares of capital stock
so represented may adjourn the meeting. If a quorum is present, the
affirmative vote of a majority of the votes entitled to be cast by the
holders of shares of capital stock represented at the meeting shall be
the act of the stockholders, unless a different number of votes is
required by the General Corporation Law, the Certificate of
Incorporation or these By-Laws. At any adjourned meeting at which a
quorum shall be present, any business may be transacted which might
have been transacted at the original meeting. Withdrawal of
stockholders from any meeting shall not cause failure of a duly
constituted quorum at that meeting.
2.8 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period.
2.9 Voting of Stock. Each stockholder shall be entitled to such
vote as shall be provided in the Certificate of Incorporation, or,
absent provision therein fixing or denying voting rights, shall be
entitled to one vote per share with respect to each matter submitted
to a vote of stockholders.
2.10 Voting of Stock by Certain Holders. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held.
Persons whose stock is pledged shall be entitled to vote, unless in
the transfer by the pledgor on the books of the Corporation he has
expressly empowered the pledgee to vote thereon, in which case only
the pledgee or his proxy may represent such stock and vote thereon.
Stock standing in the name of another corporation, domestic or
- 3 -
foreign, may be voted by such officer, agent or proxy as the charter
or by-laws of such corporation may prescribe or, in the absence of
such provision, as the board of directors of such corporation may
determine. Shares of its own capital stock belonging to the
Corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other
corporation is held by the Corporation, shall neither be entitled to
vote nor counted for quorum purposes, but shares of its capital stock
held by the Corporation in a fiduciary capacity may be voted by it and
counted for quorum purposes.
2.11 Voting by Ballot. Voting on any question or in any election
may be by voice vote unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
---------
3.1 General Powers. The business of the Corporation shall be
managed by its Board of Directors.
3.2 Number, Tenure and Qualification. The number of directors of
the Corporation shall be fifteen, and the term of office of each director
shall be as set forth in the Restated Certificate of Incorporation, as
amended. A director may resign at any time upon written notice to the
Corporation. Directors need not be stockholders of the Corporation.
3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law,
immediately after, and at the same place as, the annual meeting of
stockholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Delaware, for
the holding of additional regular meetings without other notice than
such resolution.
3.4 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chief Executive Officer or any two
directors. The person or persons authorized to call special meetings of
the Board of Directors may fix any place, either within or without the
State of Delaware, as the place for holding any special meeting of the Board
of Directors called by him or them.
3.5 Notice. Notice of any special meeting of directors, unless
waived, shall be given, in accordance with Section 3.6 of the By-Laws,
in person, by mail, by telegram or cable, by telephone, or by any
other means that reasonably may be expected to provide similar notice.
Notice by mail and, except in emergency situations as described below,
- 4 -
notice by any other means, shall be given at least two (2) days before
the meeting. For purposes of dealing with an emergency situation, as
conclusively determined by the director(s) or officer(s) calling the
meeting, notice may be given in person, by telegram or cable, by
telephone, or by any other means that reasonably may be expected to
provide similar notice, not less than two hours prior to the meeting.
If the secretary shall fail or refuse to give such notice, then the
notice may be given by the officer(s) or director(s) calling the
meeting. Any meeting of the Board of Directors shall be a legal
meeting without any notice thereof having been given, if all the
directors shall be present at the meeting. The attendance of a
director at any meeting shall constitute a waiver of notice of such
meeting, and no notice of a meeting shall be required to be given to
any director who shall attend such meeting. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
3.6 Notice to Directors. If notice to a director is given by
mail, such notice shall be deemed to have been given when deposited in
the United States mail, postage prepaid, addressed to the director at
his address as it appears on the records of the Corporation. If
notice to a director is given by telegram, cable or other means that
provide written notice, such notice shall be deemed to have been given
when delivered to any authorized transmission company, with charges
prepaid, addressed to the director at his address as it appears on the
records of the Corporation. If notice to a director is given by
telephone, wireless, or other means of voice transmission, such notice
shall be deemed to have been given when such notice has been
transmitted by telephone, wireless or such other means to such number
or call designation as may appear on the records of the Corporation
for such director.
3.7 Quorum. Except as otherwise required by the General Corpo-
ration Law or by the Certificate of Incorporation, a majority of the
number of directors fixed by these By-Laws shall constitute a quorum
for the transaction of business at any meeting of the Board of
Directors, provided that, if less than a majority of such number of
directors are present at said meeting, a majority of the directors
present may adjourn the meeting from time to time without further
notice. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee thereof.
3.8 Manner of Acting. The vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
3.9 Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all the members
of the Board or committee, as the case may be, consent thereto in
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writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
3.10 Vacancies. Vacancies on the Board of Directors, newly
created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors
resulting from death, disability, resignation, retirement,
disqualification, removal from office or other cause shall be filled
in accordance with the provisions of the Certificate of Incorporation.
3.11 Compensation. The Board of Directors, by the affirmative
vote of a majority of directors then in office, and irrespective of
any personal interest of any of its members, shall have authority to
establish reasonable compensation of all directors for services to the
Corporation as directors, officers, or otherwise. The directors may
be paid their expenses, if any, of attendance at each meeting of the
Board and at each meeting of any committee of the Board of which they
are members in such manner as the Board of Directors may from time to
time determine.
3.12 Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors or at a meeting of any
committee of the Board at which action on any corporate matter is
taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action
with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the Corporation within 24 hours after the
adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
3.13 Committees. By resolution passed by a majority of the whole
Board, the Board of Directors may designate one or more committees,
each such committee to consist of two or more directors of the
Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member of any meeting of the committee. Any such
committee, to the extent provided in the resolution or in these
By-Laws, shall have any may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. In the absence or
disqualification of any member of such committee or committees, the
member or members thereof present at the meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at
the meeting in the place of such absent or disqualified member.
3.14 Chairman and Vice Chairmen. The Board of Directors may from time
to time designate from among its members a Chairman of the Board and one or
more Vice Chairmen. The Chairman shall preside at all meetings of the Board
of Directors. In the absence of the Chairman of the Board, the Chief
Executive Officer and the President and Chief Operating Officer, and, in
their absence, a Vice Chairman (with the longest tenure as Vice Chairman),
shall preside at all meetings of the Board of Directors. The Chairman and
each of the Vice Chairmen shall have such other responsibilities as may from
time to time be assigned to each of them by the Board of Directors.
- 6 -
ARTICLE IV
OFFICERS
----------
4.1 Number. The officers of the Corporation shall be a Chief Executive
Officer, a President and Chief Operating Officer, one or more Group
Presidents (the number thereof to be determined by the Board of Directors),
one or more vice presidents (the number thereof to be determined by the
Board of Directors), a Treasurer, a Secretary and such Assistant Treasurers,
Assistant Secretaries or other officers as may be elected by the Board of
Directors.
4.2 Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting
of stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may be. New offices may be created and filled at any
meeting of the Board of Directors. Each officer shall hold office
until his successor is elected and has qualified or until his earlier
resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Election of an officer shall not
of itself create contract rights, except as may otherwise be provided
by the General Corporation Law, the Certificate of Incorporation of
these By-Laws.
4.3 Removal. Any officer elected by the Board of Directors may
be removed by the Board of Directors whenever in its judgement the
best interests of the Corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of
the person so removed.
4.4 Vacancies. A vacancy in any office occurring because of
death, resignation, removal or otherwise, may be filled by the Board
of Directors.
4.5 [Intentionally omitted.]
4.6 The Chief Executive Officer. The Chief Executive Officer shall
be the principal executive officer of the Corporation. Subject only to
the Board of Directors, he shall be in charge of the business of the
Corporation; he shall see that the resolutions and directions of the Board
of Directors are carried into effect except in those instances in which that
responsibility is specifically assigned to some other person by the Board of
Directors; and, in general, he shall discharge all duties incident to the
office of the chief executive officer of the Corporation and such other
duties as may be prescribed by the Board of Directors from time to time.
In the absence of the Chairman of the Board, the Chief Executive Officer
shall preside at all meetings of the Board of Directors. The Chief Executive
Officer shall have authority to vote or to refrain from voting any and all
shares of capital stock of any other corporation standing in the name of the
Corporation, by the execution of a written proxy, the execution of a written
ballot, the execution of a written consent or otherwise, and, in respect to
any meeting of the stockholders of such other corporation, and, on behalf of
the Corporation, may waive any notice of the calling of any such meeting.
- 7 -
The Chief Executive Officer or, in his absence, the President and Chief
Operating Officer, the Vice President-Finance, the Vice President-
Controller, the Treasurer or such other person as the Board of Directors
or one of the preceding named officers shall designate, shall call any
meeting of the stockholders of the Corporation to order and shall act as
chairman of such meeting. In the event that no one of the Chief Executive
Officer, the President and Chief Operating Officer, the Vice President-
Finance, the Vice President-Controller, the Treasurer or a person designated
by the Board of Directors or by one of the preceding named officers, is
present, the meeting shall not be called to order until such time as there
shall be present the Chief Executive Officer, the President and Chief
Operating Officer, the Vice President-Finance, the Vice President-Controller,
the Treasurer or a person designated by the Board of Directors or by one of
the preceding named officers. The chairman of any meeting of the
stockholders of this Corporation shall have plenary power to set the
agenda, determine the procedure and rules of order, and make definitive
rulings at meetings of the stockholders. The Secretary or an Assistant
Secretary of the Corporation shall act as secretary at all meetings of the
stockholders, but in the absence of the Secretary or an Assistant Secretary,
the chairman of the meeting may appoint any person to act as secretary of
the meeting.
4.7 The President and Chief Operating Officer. The President and
Chief Operating Officer shall be the principal operating officer of the
Corporation and, subject only to the Board of Directors and to the Chief
Executive Officer, he shall have the general authority over and general
management and control of the property, business and affairs of the
Corporation. In general, he shall discharge all duties incident to
the office of the principal operating officer of the Corporation and such
other duties as may be prescribed by the Board of Directors and the Chief
Executive Officer from time to time. In the absence of the Chairman of the
Board and the Chief Executive Officer, the President and Chief Operating
Officer shall preside at all meetings of the Board of Directors. In
the absence of the Chief Executive Officer or in the event of his disability,
or inability to act, or to continue to act, the President and Chief Operating
Officer shall perform the duties of the Chief Executive Officer, and when so
acting, shall have all of the powers of and be subject to all of the
restrictions upon the office of Chief Executive Officer. Except in those
instances in which the authority to execute is expressly delegated to
another officer or agent of the Corporation or a different mode of execution
is expressly prescribed by the Board of Directors or these By-Laws, he may
execute for the Corporation certificates for its shares (the issue of which
shall have been authorized by the Board of Directors), and any contracts,
deeds, mortgages, bonds, or other instruments that the Board of Directors
has authorized, and he may (without previous authorization by the Board of
Directors) execute such contracts and other instruments as the conduct of
the Corporation's business in its ordinary course requires, and he may
accomplish such execution in each case either individually or with the
Secretary, any Assistant Secretary, or any other officer thereunto
authorized by the Board of Directors, according to the requirements of
the form of the instrument. The President and Chief Operating Officer
shall have authority to vote or to refrain from voting any and all shares
of capital stock of any other corporation standing in the name of the
Corporation, by the execution of a written proxy, the execution of a written
ballot, the execution of a written consent or otherwise, and, in respect
of any meeting of stockholders of such other corporation, and, on behalf of
the Corporation, may waive any notice of the calling of any such meeting.
- 8 -
4.8 The Group Presidents. Each of the Group Presidents shall
have general authority over and general management and control of the
property, business and affairs of certain businesses of the
Corporation. Each of the Group Presidents shall report to the
President and Chief Operating Officer or such other officer as may be
determined by the Board of Directors or the President and Chief
Operating Officer and shall have such other duties and
responsibilities as may be assigned to him by the President and Chief
Operating Officer and the Board of Directors from time to time.
4.9 The Vice Presidents. Each of the Vice Presidents shall
report to the President and Chief Operating Officer or such other
officer as may be determined by the Board of Directors or the
President and Chief Operating officer. Each Vice President shall have
such duties and responsibilities as from time to time may be assigned
to him by the President and Chief Operating Officer and the Board of
Directors.
4.10 The Treasurer. The Treasurer shall: (i) have charge and
custody of and be responsible for all funds and securities of the
Corporation; receive and give receipts for monies due and payable to
the Corporation from any source whatsoever, and deposit all such
monies in the name of the Corporation in such banks, trust companies
or other depositories as shall be selected in accordance with the
provisions of Article V of these By-Laws; (ii) in general, perform all
the duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the President and Chief
Operating Officer or the Board of Directors. In the absence of the
Treasurer, or in the event of his incapacity or refusal to act, or at
the direction of the Treasurer, any Assistant Treasurer may perform
the duties of the Treasurer.
4.11 The Secretary. The Secretary shall: (i) record all of the
proceedings of the meetings of the stockholders and Board of Directors
in one or more books kept for the purpose; (ii) see that all notices
are duly given in accordance with the provisions of these By-Laws or
as required by law; (iii) be custodian of the corporate records and of
the seal of the Corporation and see that the seal of the Corporation
is affixed to all certificates for shares of capital stock prior to
the issue thereof and to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized in
accordance with he provisions of these By-Laws; (iv) keep a register
of the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (v) have general
charge of the stock transfer books of the Corporation and (vi) in
general, perform all duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the
President and Chief Operating Officer or the Board of Directors. In
the absence of the Secretary, or in the event of his incapacity or
refusal to act, or at the direction of the Secretary, any Assistant
Secretary may perform the duties of Secretary.
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ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
5.1 Contracts. Except as otherwise determined by the Board of
Directors or provided in these By-Laws, all deeds and mortgages made by
the Corporation and all other written contracts and agreements to which
the Corporation shall be a party shall be executed in its name by the Chief
Executive Officer, the President and Chief Operating Officer, or any Vice
President so authorized by the Board of Directors.
5.2 Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors.
Such authority may be general or confined to specific instances.
5.3 Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued
in the name of the Corporation, shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by resolution of the Board of
Directors.
5.4 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as
the Board of Directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES OF
CAPITAL STOCK AND THEIR TRANSFER
--------------------------------
6.1 Share Ownership; Transfers of Stock. Shares of the capital stock
of the Corporation may be certificated or uncertificated. Owners of shares
of the capital stock of the Corporation shall be recorded in the books of
the Corporation and ownership of such shares shall be evidenced by a
certificate or book entry notation in the books of the Corporation. If
shares are represented by certificates, such certificates shall be in
such form as may be determined by the Board of Directors. Certificates shall
be signed by the Chief Executive Officer or the President and Chief
Operating Officer or any Vice President and by the Treasurer or the
Secretary or an Assistant Secretary. If any such certificate is
countersigned by a transfer agent other than the Corporation or its
employee, or by a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. All certificates
for shares of capital stock shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue, shall be entered
on the books of the Corporation. Each certificate surrendered to the
Corporation for transfer shall be cancelled and no new certificate or other
- 10 -
evidence of new shares shall be issued until the former certificate for a
like number of shares shall have been surrendered and cancelled, except that
in case of a lost, destroyed or mutilated certificate, a new certificate or
other evidence of new shares may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
Uncertificated shares shall be transferred in the books of the Corporation
upon the written instruction originated by the appropriate person to
transfer the shares.
6.2 Transfer Agents And Registers. The Board of Directors may
appoint one or more transfer agents or assistant transfer agents and
one or more registrars of transfers, and may require all certificates
for shares of capital stock of the Corporation to bear the signature
of a transfer agent and a registrar of transfers. The Board of
Directors may at any time terminate the appointment of any transfer
agent or any assistant transfer agent or any registrar of transfers.
ARTICLE VII
LIABILITY AND INDEMNIFICATION
-----------------------------
7.1 Limited Liability of Directors.
(a) No person who was or is a director of this Corporation shall
be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (i) for breach of the duty of loyalty to the Corporation
or its stockholders; (ii) for acts of omissions not in good faith or
that involve intentional misconduct or know violation of law; (iii)
under Section 174 of the General Corporation Law; or (iv) for any
transaction from which the director derived any improper personal
benefit. If the General Corporation Law is amended after the
effective date of the By-Law to further eliminate or limit, or to the
effective date of this By-Law to further eliminate or limit, or to
authorize further elimination or limitation of, the personal liability
of a director to this Corporation or its stockholders shall be
eliminated or limited to the full extent permitted by the General
Corporation Law, as so amended. For Purposes of this By-Law,
"fiduciary duty as a director" shall include any fiduciary duty
arising out of serving at the request of this Corporation as a
director of another corporation, partnership, joint venture, trust or
other enterprise, and any liability to such other corporation,
partnership, joint venture, trust or other enterprise, and any
liability to this Corporation in its capacity as a security holder,
joint venturer, partner, beneficiary, creditor, or investor of or in
any such other corporation, partnership, joint venture, trust or other
enterprise.
(b) Any repeal or modification of the foregoing paragraph by the
stockholders of this Corporation shall not adversely affect the
elimination or limitation of the personal liability of a director for
any act or omission occurring prior to the effective date of such
repeal or modification. This provision shall not eliminate or limit
the liability of a director for any act or omission occurring prior to
the effective date of this By-Law.
- 11 -
7.2 Litigation Brought by Third Parties. The Corporation shall
indemnify any person 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) by reason
of the fact that he is or was or has agreed to become a director or
officer of the Corporation; or is or was serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and other expenses
(including attorneys' fees) ("Expenses"), judgements, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding and any appeal thereof
if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgement, order, settlement, conviction, or
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. For purposes of this By-Law, "serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise" shall include any service by a director or officer of the
Corporation as a director, officer, employee, agent or fiduciary of
such other corporation, partnership, joint venture trust or other
enterprise, or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Corporation or any such other
enterprise.
7.3 Litigation By or in the Right of the Corporation. The
Corporation shall indemnify any person 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 he is or was or has
agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity against Expenses
actually and reasonably incurred by him in connection with the
investigation, defense or settlement of such action or suit and any
appeal thereof if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall 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 of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such Expenses as the Court of Chancery of
Delaware or such other court shall deem proper.
- 12 -
7.4 Successful Defense. To the extent that any person referred
to in section 7.2 or 7.3 of these By-Laws has been successful on the
merits or otherwise, including, without limitation, the dismissal of
an action without prejudice, in defense of any action, suit or
proceeding referred to therein or in defense of any claim, issue or
matter therein, he shall be indemnified against Expenses actually and
reasonably incurred by him in connection therewith.
7.5 Determination of Conduct. Any indemnification under section
7.2 or 7.3 of these By-Laws (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard
of conduct set forth in section 7.2 or 7.3. Such determination shall
be made (i) by the Board of Directors by a majority vote of a quorum
(as defined in these By-laws) consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such quorum is
not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
7.6 Advance Payment. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding
and any appeal upon receipt by the Corporation of an undertaking by or
on behalf of the director or officer to repay such amount if it shall
ultimately be determined that the is not entitled to be indemnified by
the Corporation.
7.7 Determination of Entitlement to Indemnification. The
determination of the entitlement of any person to indemnification
under section 7.2, 7.3 or 7.4 or to advancement of Expenses under
section 7.6 of these By-Laws shall be made promptly, and in any event
within 60 days after the Corporation has received a written request
for payment from or on behalf of a director or officer and payment of
amounts due under such sections shall be made immediately after such
determination. If no disposition of such request is made within said
60 days or if payment has not been made within 10 days thereafter, or
if such request is rejected, the right to indemnification or
advancement of Expenses provided by this By-Law shall be enforceable
by or on behalf of the director or officer in any court of competent
jurisdiction. In addition to the other amounts due under this By-Law,
Expenses incurred by or on behalf of a director or officer in
successfully establishing his right to indemnification or advancement
of Expenses, in whole or in part, in any such action (or settlement
thereof) shall be paid by the Corporation.
7.8 By-Laws Not Exclusive: Change in Law. The indemnification
and advancement of Expenses provided by these By-Laws shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of Expenses may be entitled under any
law (common or statutory), the Certificate of Incorporation,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, or while employed by or
acting as a director or officer of the Corporation or as a director or
officer of another corporation, partnership, joint venture, trust or
- 13 -
other enterprise, and shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding the
provisions of these By-Laws, the Corporation shall indemnify or make
advancement of Expenses to any person referred to in section 7.2 or
7.3 of this By-Law to the full extent permitted under the laws of
Delaware and any other applicable laws, as they now exist or as they
may be amended in the future.
7.9 Contract Rights. All rights to indemnification and
advancement of Expenses provided by these By-Laws shall be deemed to
be a contract between the Corporation and each director or officer of
the Corporation who serves, served or has agreed to serve in such
capacity, or at the request of the Corporation as director or officer
of another corporation, partnership, joint venture, trust or other
enterprise, at any time while these By-Laws and the relevant
provisions of the General Corporation Law or other applicable law, if
any, are in effect. Any repeal or modification of these By-Laws, or
any repeal or modification of relevant provisions of the Delaware
General Corporation Law or any other applicable law, shall not in any
way diminish any rights to indemnification of or advancement of
Expenses to such director or officer or the obligations of the
Corporation.
7.10 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has to
become a director or officer of the Corporation, or is or was serving
or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of these By-Laws.
7.11 Indemnification of Employees or Agents. The Board of
DirectorS may, by resolution, extend the provisions of these By-Laws
pertaining to indemnification and advancement of Expenses to any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding by
reason of the fact that he is or was or has agreed to become an
employee, agent or fiduciary of the Corporation or is or was serving
or has agreed to serve at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another
Corporation, partnership, joint venture, trust or other enterprise or
with respect to any employee benefit plan (or its participants or
beneficiaries) of the Corporation or any such other enterprise.
- 14 -
ARTICLE VIII
FISCAL YEAR
------------
8.1 The fiscal year of the Corporation shall end on the thirty-
first day of December in each year.
ARTICLE IX
DIVIDENDS
----------
9.1 The Board of Directors may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares of
capital stock in the manner and upon the terms and conditions provided
by law and its Certificate of Incorporation.
ARTICLE X
SEAL
---------
10.1 The Board of Directors shall provide a corporate seal which
shall be in the form of a circle and shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal, Delaware."
ARTICLE XI
WAIVER OF NOTICE
----------------
11.1 Whenever any notice whatever is required to be given under
any provision of these By-Laws or of the Certificate of Incorporation
or of the General Corporation Law, a written waiver thereof, signed by
the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person
at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
ARTICLE XII
AMENDMENTS
------------
12.1 These By-Laws may be altered, amended or repealed and new
By-Laws may be adopted at any meeting of the Board of Directors of the
Corporation by a majority of the whole Board of Directors.
-15-
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Newell Rubbermaid
Inc.'s Form 8-K dated March 24, 1999 and in Newell Co.'s previously
filed Form S-8 Registration Statements File Nos. 33-24447, 33-25196,
33-40641, 33-44957, 33-62047, 33-67632, 333-38621, 333-71747 and
333-74925, and Form S-3 Registration Statements File Nos. 33-46208,
33-64225, 333-47261, 333-53039, 333-71747, 333-74927 and 333-74929, of
our report dated January 30, 1998, with respect to the consolidated
balance sheets of Rubbermaid Incorporated and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements
of earnings, cash flows and shareholders' equity for each of the years
in the three-year period ended December 31, 1997, which report is
included in Newell Co.'s Form 8-K/A dated November 20, 1998.
/s/ KPMG LLP
Cleveland, Ohio
March 24, 1999
EXHIBIT 99.1
[Newell Rubbermaid logo] News Release
Newell Rubbermaid Inc.
Freeport, Illinois
SECURITIES LISTED NYSE/CSE
Common Stock (Symbol-NWL)
Web: www.newellco.com
NEWELL COMPLETES RUBBERMAID ACQUISITION
FREEPORT, IL March 24, 1999 - Newell Co. (NYSE, CSE: NWL) and
Rubbermaid Incorporated announced today that their previously announced
merger has been completed. As a result of the merger, former Rubbermaid
shareholders receive 0.7883 of a share of Newell common stock for each
share of Rubbermaid common stock they owned. The merger was treated as
a tax-free reorganization for federal income tax purposes and will be
accounted for under the pooling of interests method of accounting.
The combined company is called Newell Rubbermaid Inc. and joins the
exceptional financial performance and superior customer service of
Newell with the powerful brand franchises and product innovation of
Rubbermaid.
Based in Freeport, Illinois, Newell Rubbermaid Inc. is a multi-
national manufacturer and marketer of high-volume, branded, staple
consumer products with restated 1998 sales of $6.2 billion. Newell
Rubbermaid products are sold through a variety of retail and wholesale
distribution channels in the following business segments: Household
Products, including Mirro{RT} and Calphalon{RT} cookware,
Rubbermaid{RT} and Curver{RT} home products, Little Tikes{RT},
Graco{RT} and Century{RT} infant and juvenile products, Anchor
Hocking{RT} glassware and Goody {RT} hair accessories; Hardware and
Home furnishings, including Levolor{RT}, Kirsch{RT} and Newell{RT}
window treatments, Amerock{RT}, EZ Paintr{RT}, BernzOmatic{RT} and
Bulldog{RT} hardware and tools, Intercraft{RT} and Burnes{RT} picture
frames and Lee Rowan{RT} home storage products; and Office Products,
including Sanford{RT}, Berol{RT}, Sharpie{RT} and Rotring{RT} writing
instruments and Rolodex{RT} and Eldon{RT} office storage and
organization products.
The statements contained in this press release that are not
historical in nature are forward-looking statements.
Forward-looking statements are not guarantees since there are
inherent difficulties in predicting future results, and actual
results could differ materially from those expressed or implied
in the forward-looking statements. These factors include, without
limitation, those disclosed in Newell's and Rubbermaid's Form
10-K filings with the Securities and Exchange Commission and in
Newell's S-4 Registration Statement filed with the Securities and
Exchange Commission relating to the merger.
[Newell Rubbermaid logo]
At Newell Rubbermaid
Ross A. Porter, Jr.
Vice President - Investor Relations
6833 Stalter Drive
Rockford, IL 61108
Phone: (815) 381-8150
Fax: (815) 381-8155