SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
for the Quarterly Period Ended March 31, 2001
Commission File Number 1-9608
NEWELL RUBBERMAID INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3514169
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
29 East Stephenson Street
Freeport, Illinois 61032-0943
(Address of principal executive offices)
(Zip Code)
(815) 235-4171
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months, and (2) has been
subject to such filing requirements for the past 90 days.
Yes /x/ No / /
Number of shares of Common Stock outstanding (net of treasury
shares) as of May 2, 2001: 266,646,855
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
--------------------
NEWELL RUBBERMAID INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited, in thousands, except per share data)
Three Months Ended
March 31,
---------
2001 2000
---- ----
Net sales $1,610,736 $1,628,979
Cost of products sold 1,218,960 1,220,495
---------- ----------
GROSS INCOME 391,776 408,484
Selling, general and administrative expenses 264,607 239,608
Restructuring costs 9,979 763
Goodwill amortization and other 14,073 13,222
---------- ----------
OPERATING INCOME 103,117 154,891
Nonoperating expenses:
Interest expense 39,321 27,849
Other, net 2,809 3,107
----------- ----------
Net nonoperating expenses 42,130 30,956
----------- ----------
INCOME BEFORE INCOME TAXES 60,987 123,935
Income taxes 22,566 47,715
----------- ----------
NET INCOME $ 38,421 $ 76,220
=========== ==========
Weighted average shares outstanding:
Basic 266,618 274,059
Diluted 266,618 284,016
Earnings per share:
Basic $ 0.14 $ 0.28
Diluted 0.14 0.28
Dividends per share $ 0.21 $ 0.21
See notes to consolidated financial statements.
-2-
NEWELL RUBBERMAID INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited, in thousands)
March 31, December 31,
2001 2000
---- ----
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 19,873 $ 22,525
Accounts receivable, net 1,131,531 1,183,363
Inventories, net 1,309,991 1,262,551
Deferred income taxes 221,979 231,875
Prepaid expenses and other 189,469 196,338
---------- ----------
TOTAL CURRENT ASSETS 2,872,843 2,896,652
MARKETABLE EQUITY SECURITIES 7,920 9,215
OTHER LONG-TERM INVESTMENTS 74,937 72,763
OTHER ASSETS 342,832 336,344
PROPERTY, PLANT AND EQUIPMENT, NET 1,719,462 1,756,903
TRADE NAMES AND GOODWILL 2,150,125 2,189,948
---------- ----------
TOTAL ASSETS $7,168,119 $7,261,825
========== ==========
-3-
NEWELL RUBBERMAID INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (CONT.)
(Unaudited, in thousands)
March 31, December 31,
2001 2000
---- ----
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable $ 13,844 $ 23,492
Accounts payable 366,475 342,406
Accrued compensation 79,945 126,970
Other accrued liabilities 758,658 781,122
Income taxes 113,073 73,122
Current portion of long-term debt 214,294 203,714
---------- ----------
TOTAL CURRENT LIABILITIES 1,546,289 1,550,826
LONG-TERM DEBT 2,318,273 2,319,552
OTHER NON-CURRENT LIABILITIES 355,070 347,855
DEFERRED INCOME TAXES 103,092 93,165
MINORITY INTEREST 1,026 1,788
COMPANY-OBLIGATED
MANDATORILY REDEEMABLE
CONVERTIBLE PREFERRED
SECURITIES OF A SUBSIDIARY TRUST 499,998 499,998
STOCKHOLDERS' EQUITY
Common stock - authorized
shares, 800.0 million at
$1 par value 282,268 282,174
Outstanding shares:
2001 282.3 million
2000 282.2 million
Treasury stock, at cost (408,459) (407,456)
Shares held:
2001 15.6 million
2000 15.6 million
Additional paid-in capital 217,619 215,911
Retained earnings 2,513,229 2,530,864
Accumulated other comprehensive
loss (260,286) (172,852)
---------- ----------
TOTAL STOCKHOLDERS' EQUITY 2,344,371 2,448,641
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $7,168,119 $7,261,825
========== ==========
See notes to consolidated financial statements.
-4-
NEWELL RUBBERMAID INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited, in thousands)
For the Three Months Ended
March 31,
---------
2001 2000
---- ----
OPERATING ACTIVITIES:
Net income $ 38,421 $ 76,220
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 87,551 77,083
Deferred income taxes 11,183 12,498
Non-cash restructuring charges 6,691 -
Other 1,735 (2,573)
Changes in current accounts, excluding the effects
of acquisitions:
Accounts receivable 45,893 61,623
Inventories (56,123) (135,967)
Other current assets 7,677 17,837
Accounts payable 24,516 (32,115)
Accrued liabilities and other (43,480) (100,474)
---------- ---------
NET CASH PROVIDED BY (USED IN) OPERATING
ACTIVITIES 124,064 (25,868)
---------- ---------
INVESTING ACTIVITIES:
Acquisitions, net (15,367) (54,445)
Expenditures for property, plant
and equipment (59,744) (81,188)
Disposals of non-current assets and other 4,672 11,989
---------- ---------
NET CASH USED IN INVESTING ACTIVITIES (70,439) (123,644)
---------- ---------
FINANCING ACTIVITIES:
Proceeds from issuance of debt 19,122 574,537
Payments on notes payable
and long-term debt (18,659) (58,823)
Common stock repurchase - (402,962)
Cash dividends (55,994) (57,149)
Proceeds from exercised stock options
and other 737 405
---------- ---------
NET CASH (USED IN) PROVIDED BY
FINANCING ACTIVITIES (54,794) 56,008
---------- ---------
Exchange rate effect on cash (1,483) (632)
DECREASE IN CASH AND CASH
EQUIVALENTS (2,652) (94,136)
Cash and cash equivalents at beginning of year 22,525 102,164
---------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 19,873 $ 8,028
========== =========
Supplemental cash flow disclosures -
Cash paid during the period for:
Income taxes, net of refunds $ (40,819) $ 3,723
Interest $ 52,529 $ 44,396
See notes to consolidated financial statements.
-5-
NEWELL RUBBERMAID INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - GENERAL INFORMATION
The condensed financial statements included herein have been
prepared by the Company, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission, and reflect all
adjustments necessary to present a fair statement of the results for
the periods reported, subject to normal recurring year-end
adjustments, none of which is expected to be material. Certain
information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations, although the Company believes that the disclosures are
adequate to make the information presented not misleading. It is
suggested that these condensed financial statements be read in
conjunction with the financial statements and the notes thereto
included in the Company's latest Annual Report on Form 10-K.
NOTE 2 - ACQUISITIONS
The Company acquired Mersch SA on January 24, 2000 and Brio on
May 24, 2000. Both are manufacturers and suppliers of picture frames
in Europe, and now operate as part of Newell Photo Fashions Europe.
The Company acquired the stationery products business of The
Gillette Company ("Paper Mate/Parker") on December 29, 2000. The U.S.
and Canadian operations were merged into Sanford North America, while
all other operations were consolidated into Sanford International.
For these and for other minor acquisitions, the Company paid
$600.6 million in cash and assumed $15.0 million of debt. The
transactions were accounted for as purchases; therefore, results of
operations are included in the accompanying consolidated financial
statements since their respective acquisition dates. The acquisition
costs were allocated on a preliminary basis to the fair market value
of the assets acquired and liabilities assumed and resulted in trade
names and goodwill of approximately $253.6 million.
The unaudited consolidated results of operations for the three
months ended March 31, 2001 and 2000 on a pro forma basis, as though
the Mersch, Brio and Paper Mate/Parker businesses had been acquired on
January 1, 2000, are as follows (in millions, except per share
amounts):
Three Months Ended March 31,
----------------------------
2001 2000
---- ----
Net sales $ 1,610.7 $ 1,767.4
Net income $ 38.4 $ 68.1
Basic earnings per share $ 0.14 $ 0.26
-6-
NOTE 3 - RESTRUCTURING COSTS
Certain expenses incurred in the reorganization of the Company's
operations are considered to be restructuring expenses. Pre-tax
restructuring costs consisted of the following (in millions):
Three Months Ended March 31,
----------------------------
2001 2000
---- ----
Employee severance and
termination benefits $ 5.9 $ 0.3
Facility and product line
exit costs 1.1 0.5
Other merger transaction
costs 3.0 -
------ ------
$ 10.0 $ 0.8
====== ======
Reserves that remained for restructuring costs consisted of the
following (in millions):
March 31, December 31,
2001 2000
---- ----
Facility and product line
exit costs $ 9.7 $ 11.4
Employee severance and
termination benefits 6.4 3.3
Contractual future
maintenance costs 4.0 4.6
Other merger transaction
costs 5.2 2.6
------ ------
$ 25.3 $ 21.9
====== ======
NOTE 4 - INVENTORIES
Inventories are stated at the lower of cost or market value. The
components of inventories, net of LIFO reserve, were as follows (in
millions):
March 31, December 31,
2001 2000
---- ----
Materials and supplies $ 171.3 $ 244.8
Work in process 180.9 165.3
Finished products 957.8 852.5
--------- ---------
$ 1,310.0 $ 1,262.6
========= =========
-7-
NOTE 5 - PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consisted of the following (in
millions):
March 31, December 31,
2001 2000
---- ----
Land $ 59.8 $ 60.7
Buildings and improvements 727.7 736.1
Machinery and equipment 2,441.7 2,421.6
--------- ---------
$ 3,229.2 $ 3,218.4
Allowance for depreciation (1,509.7) (1,461.5)
---------- ---------
$ 1,719.5 $ 1,756.9
========= =========
Replacements and improvements are capitalized. Expenditures for
maintenance and repairs are charged to expense. The components of
depreciation are provided by annual charges to income calculated to
amortize, principally on the straight-line basis, the cost of the
depreciable assets over their depreciable lives. Estimated useful
lives determined by the Company are: buildings and improvements (5-40
years) and machinery and equipment (2-15 years).
NOTE 6 - LONG-TERM DEBT
Long-term debt consisted of the following (in millions):
March 31, December 31,
2001 2000
---- ----
Medium-term notes $ 1,012.5 $ 1,012.5
Commercial paper 1,514.3 1,503.7
Other long-term debt 5.8 7.1
--------- ---------
$ 2,532.6 $ 2,523.3
Current portion (214.3) (203.7)
--------- ---------
$ 2,318.3 $ 2,319.6
========= =========
At March 31, 2001, $1,514.3 million (principal amount) of
commercial paper was outstanding. Of this amount, $1,300.0 million is
classified as long-term debt because it is supported by a long-term
$1,300.0 million revolving credit agreement, and the remainder of
$214.3 million is classified as current portion of long-term debt.
-8-
NOTE 7 - EARNINGS PER SHARE
The earnings per share amounts are computed based on the weighted
average monthly number of shares outstanding during the year. "Basic"
earnings per share is calculated by dividing net income by weighted
average shares outstanding. "Diluted" earnings per share is
calculated by dividing net income by weighted average shares
outstanding, including the assumption of the exercise and/or
conversion of all potentially dilutive securities ("in the money"
stock options and company-obligated mandatorily redeemable convertible
preferred securities of a subsidiary trust). A reconciliation of the
difference between basic and diluted earnings per share for the first
three months of 2001 and 2000 is shown below (in millions, except per
share data):
Convertible
Basic "In the money" Preferred Diluted
Method stock options Securities Method
------ ------------- ---------- -------
Three months ended
March 31, 2001 (1):
Net Income $ 38.4 - - $ 38.4
Weighted average
shares outstanding 266.6 - - 266.6
Earnings per Share $ 0.14 - - $ 0.14
Three months ended
March 31, 2000:
Net Income $ 76.2 - $ 4.1 $ 80.3
Weighted average
shares outstanding 274.1 - 9.9 284.0
Earnings per Share $ 0.28 - - $ 0.28
(1) Diluted earnings per share for this period exclude the impact of
"in the money" stock options and convertible preferred securities
because they are antidilutive.
-9-
NOTE 8 - COMPREHENSIVE INCOME (LOSS)
The following tables display Comprehensive Income (Loss) and the
components of Accumulated Other Comprehensive Income (Loss) (in
millions):
Three months ended March 31,
----------------------------
2001 2000
---- ----
Comprehensive (Loss) Income:
Net income $ 38.4 $ 76.2
Unrealized loss on marketable securities (0.8) (1.0)
Derivatives hedging loss (17.1) -
Foreign currency translation loss (69.5) (9.7)
-------- --------
Total Comprehensive (Loss) Income $ (49.0) $ 65.5
======== ========
Net Foreign Accumulated
Unrealized Currency Derivatives Other
Loss Translation Hedging Comprehensive
on Securities Loss Loss Loss
------------- ---- ---- ----
Accumulated Other
Comprehensive Loss:
Balance at
December 31, 2000 $ (1.1) $ (171.8) $ - $ (172.9)
Change during
three months
ended March 31, 2001 (0.8) (69.5) (17.1) (87.4)
------- --------- --------- ---------
Balance at March 31, 2001 $ (1.9) $ (241.3) $ (17.1) $ (260.3)
======= ========= ========= =========
-10-
NOTE 9 - INDUSTRY SEGMENT INFORMATION
On April 2, 2001, the Company announced the realignment of its
operating segment structure. This realignment reflects the Company's
focus on building large consumer brands, promoting organizational
integration and operating efficiencies and aligning the businesses
with the Company's key account strategy. The five new segments have
been named for leading worldwide brands in the Company's product
portfolio. The realignment streamlines what had been six operating
segments. Based on this management structure, the Company is
reporting its results as follows (in millions):
For the three months ended March 31,
------------------------------------
Net Sales 2001 2000
---- ----
Rubbermaid $ 432.0 $ 479.6
Parker/Eldon 334.5 263.7
Levolor/Hardware 331.0 354.9
Calphalon/WearEver 276.3 283.0
Little Tikes/Graco 236.9 247.8
--------- ---------
$ 1,610.7 $ 1,629.0
========= =========
For the three months ended March 31,
------------------------------------
Operating Income 2001 2000
---- ----
Rubbermaid $ 44.6 $ 45.0
Parker/Eldon 32.4 36.8
Levolor/Hardware 22.3 35.1
Calphalon/WearEver 22.1 29.0
Little Tikes/Graco 13.2 30.6
Corporate (21.5) (20.8)
-------- -------
113.1 155.7
Restructuring costs (10.0) (0.8)
-------- -------
$ 103.1 $ 154.9
======== =======
March 31, December 31,
Identifiable Assets 2001 2000
---- ----
Rubbermaid $ 1,133.8 $1,185.2
Parker/Eldon 1,080.8 1,050.9
Levolor/Hardware 770.5 775.9
Calphalon/WearEver 806.4 849.3
Little Tikes/Graco 557.7 537.5
Corporate 2,818.9 2,863.0
--------- --------
$ 7,168.1 $7,261.8
========= ========
-11-
Operating income is net sales less cost of products sold and
selling, general and administrative expenses. Certain headquarters
expenses of an operational nature are allocated to business segments
primarily on a net sales basis. Trade names and goodwill amortization
is considered a corporate expense and not allocated to business
segments. All intercompany transactions have been eliminated and
transfers of finished goods between areas are not significant.
Corporate assets primarily include trade names and goodwill, equity
investments and deferred tax assets.
-12-
NOTE 10 - ACCOUNTING PRONOUNCEMENTS
Since June 1998, the Financial Accounting Standards Board
("FASB") has issued SFAS Nos. 133, 137 and 138 related to "Accounting
for Derivative Instruments and Hedging Activities" ("SFAS No. 133, as
amended" or "Statements"). These Statements establish accounting and
reporting standards requiring that every derivative instrument be
recorded on the balance sheet as either an asset or liability measured
at its fair value. The Statements require that changes in the
derivative's fair value be recognized currently in earnings unless
specific hedge accounting criteria are met, in which case the gains or
losses would offset the related results of the hedged item. These
Statements require that, as of the date of initial adoption, the
impact of adoption be recorded as a cumulative effect of a change in
accounting principle. To the extent that these amounts are recorded
in other comprehensive income, they will be reversed into earnings in
the period in which the hedged transaction occurs. The impact of
adopting these Statements on January 1, 2001 resulted in a cumulative
after-tax gain of approximately $13.0 million recorded in accumulated
other comprehensive income and had no material impact on net income.
The adoption resulted in an increase in assets and liabilities of
approximately $99.0 million and $86.0 million, respectively.
In May 2000, the EITF issued EITF No. 00-14 "Accounting for
Certain Sales Incentives." The EITF subsequently amended the
transition provisions of this issue in November 2000. EITF No. 00-14
prescribes guidance regarding timing of recognition and income
statement classification of costs incurred for certain sales incentive
programs. This guidance requires certain coupons, rebate offers and
free products offered concurrently with a single exchange transaction
to be recognized when incurred and reported as a reduction of revenue.
In January 2001, the EITF issued EITF No. 00-22 "Accounting for
'Points' and Certain Other Time-Based or Volume-Based Sales Incentive
Offers and Offers for Free Products or Services to be Delivered in the
Future." EITF No. 00-22 prescribes guidance regarding timing of
recognition and income statement classification of costs incurred in
connection with offers of "free" products or services that are
exercisable by an end consumer as a result of a single exchange
transaction with the retailer which will not be delivered by the
vendor until a future date. This guidance requires certain rebate
offers and free products that are delivered subsequent to a single
exchange transaction to be recognized when incurred and reported as a
reduction of revenue.
The effective dates of EITF No. 00-14 and EITF No. 00-22 are
March 31, 2001 and June 30, 2001, respectively. The Company's
adoption of EITF No. 00-14 and EITF No. 00-22 on December 31, 2000 did
not impact the results of operations because the Company's past and
current accounting policy is to report such costs as reductions in
revenue.
-13-
PART I. FINANCIAL INFORMATION
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF
OPERATIONS AND FINANCIAL CONDITION
--------------------------------------------------
RESULTS OF OPERATIONS
---------------------
The following table sets forth for the periods indicated items
from the Consolidated Statements of Income as a percentage of net
sales.
Three Months Ended March 31,
----------------------------
2001 2000
---- ----
Net sales 100.0% 100.0%
Cost of products sold 75.7 74.9
----- -----
GROSS INCOME 24.3 25.1
Selling, general and
administrative expenses 16.4 14.7
Restructuring costs 0.6 0.1
Trade names and goodwill amortization
and other 0.9 0.8
----- -----
OPERATING INCOME 6.4 9.5
----- -----
Nonoperating expenses:
Interest expense 2.4 1.6
Other, net 0.2 0.3
----- -----
Net nonoperating expenses 2.6 1.9
----- -----
INCOME BEFORE INCOME TAXES 3.8 7.6
Income taxes 1.4 2.9
----- -----
NET INCOME 2.4% 4.7%
===== =====
See notes to consolidated financial statements.
-14-
THREE MONTHS ENDED MARCH 31, 2001 VS. THREE MONTHS ENDED MARCH 31, 2000
-----------------------------------------------------------------------
Net sales for the three months ended March 31, 2001 ("first
quarter") were $1,610.7 million, representing a decrease of $18.3
million or 1.1% from $1,629.0 million in the comparable quarter of
2000. The decrease in net sales is primarily due to internal declines
of 6.8% due to slowness in the economy offset by contributions from
Paper Mate/Parker (acquired in December 2000).
The Company announced the realignment of its operating segment
structure to reflect the Company's focus on building large consumer
brands, promoting organizational integration and operating
efficiencies and aligning the businesses with the Company's key
account strategy. The five new segments have been named for leading
worldwide brands in the Company's product portfolio and streamlines
what had been six operating segments. Based on this management
structure, the Company is reporting its results as follows (in
millions):
Percentage
Increase/
2001 2000 Decrease
---- ---- --------
Rubbermaid $ 432.0 $ 479.6 (9.9)%(1)
Parker/Eldon 334.5 263.7 26.8 (2)
Levolor/Hardware 331.0 354.9 (6.7) (1)
Calphalon/WearEver 276.3 283.0 (2.4)
Little Tikes/Graco 236.9 247.8 (4.4)
-------- --------
Total $1,610.7 $1,629.0 (1.1)%
======== ========
(1) Internal sales decline due to slowness in the economy.
(2) Internal sales decline of 4.4% plus sales from the Paper
Mate/Parker acquisition.
Gross income as a percentage of net sales in the first quarter of
2001 was 24.3% or $391.8 million versus 25.1% or $408.5 million in the
comparable quarter of 2000. Excluding charges of $3.1 million ($2.0
million after taxes) related to recent acquisitions, gross income in
the first quarter of 2001 was $394.9 million or 24.5% of net sales.
Excluding charges, gross income declined as a result of decreased
sales volume.
Selling, general and administrative expenses ("SG&A") in the
first quarter of 2001 were 16.4% of net sales or $264.6 million versus
14.7% or $239.6 million in the comparable quarter of 1999. Excluding
charges of $1.1 million ($0.7 million after taxes) relating to recent
acquisitions, SG&A in the first quarter of 2001 were $263.5 million or
16.4% of net sales. Excluding charges, SG&A increased as a result of
the Paper Mate/Parker acquisition.
-15-
In the first quarter of 2001, the Company recorded a pre-tax
restructuring charge of $10.0 million ($6.3 million after taxes). The
pre-tax charge included $5.9 million of severance costs, $1.1 million
of facility exit costs and $3.0 million of other transaction costs.
In the first quarter of 2000, the Company recorded a pre-tax
restructuring charge of $0.8 million ($0.5 million after taxes). The
pre-tax charge related primarily to costs associated with facility
closures from non-Rubbermaid acquisitions.
Trade names and goodwill amortization and other in the first
quarter of 2001 were 0.9% of net sales or $14.1 million versus 0.8% or
$13.2 million in the comparable quarter of 2000. The increases are
primarily related to an increase in goodwill associated with the
recent Paper Mate/Parker acquisition.
Operating income in the first quarter of 2001 was 6.4% of net
sales or $103.1 million versus operating income of 9.5% or $154.9
million in the comparable quarter of 2000. Excluding restructuring
costs and other charges in 2001 and 2000, operating income in the
first quarter of 2001 was 7.3% or $117.3 million versus 9.6% or $155.7
million in the first quarter of 2000. The decrease in operating
income was primarily due to lower than expected sales volume and the
Paper Mate/Parker acquisition.
Net nonoperating expenses in the first quarter of 2001 were 2.6%
of net sales or $42.1 million versus net nonoperating income of 1.9%
or $31.0 million in the comparable quarter of 2000. The increase in
net non-operating expenses is primarily due to $11.5 million of
increased interest expense as a result of higher debt levels.
The effective tax rate was 37.0% in the first quarter of 2001
versus 38.5% in the first quarter of 2000.
Net income for the first quarter of 2001 was $38.4 million,
compared to net income of $76.2 million in the first quarter of 2000.
Basic earnings per share were $0.14 in the first quarter of 2001
compared to $0.28 in the first quarter of 2000. Excluding 2001
restructuring costs of $10.0 million ($6.3 million after taxes) and
other 2001 pre-tax charges of $4.2 million ($2.7 million after taxes)
and 2000 restructuring costs of $0.8 million ($0.5 million after
taxes), net income decreased $29.3 million or 38.3% to $47.4 million
in the first quarter of 2001 from $76.7 million in 2000. Earnings per
share, calculated on the same basis, decreased 36.5% to $0.18 in the
first quarter of 2001 from $0.28 in the first quarter of 2000. The
decrease in net income was primarily due to internal sales declines
and increased interest expense resulting from higher debt levels.
-16-
LIQUIDITY AND CAPITAL RESOURCES
-------------------------------
Sources:
The Company's primary sources of liquidity and capital resources
include cash provided from operations and use of available borrowing
facilities.
Net cash provided by operating activities in the first three
months of 2001 was $124.1 million, representing an increase of $150.0
million from $25.9 million of cash used for the comparable period of
2000. The increase in cash provided from operating activities was
primarily due to improved working capital management throughout the
Company.
The Company has short-term foreign and domestic committed and
uncommitted lines of credit with various banks which are available for
short-term financing. Borrowings under the Company's uncommitted
lines of credit are subject to discretion of the lender. The
Company's lines of credit do not have a material impact on the
Company's liquidity. Borrowings under the Company's lines of credit at
March 31, 2001 totaled $13.8 million.
The Company has a revolving credit agreement of $1,300.0 million
that will terminate in August 2002. During 2000, the Company entered
into a new 364-day revolving credit agreement in the amount of $700.0
million. This revolving credit agreement will terminate in October
2001. At March 31, 2001, there were no borrowings under these
revolving credit agreements.
In lieu of borrowings under the Company's revolving credit
agreements, the Company may issue up to $2,000.0 million of commercial
paper. The Company's revolving credit agreements provide the
committed backup liquidity required to issue commercial paper.
Accordingly, commercial paper may only be issued up to the amount
available for borrowing under the Company's revolving credit
agreements. At March 31, 2001, $1,514.3 million (principal amount) of
commercial paper was outstanding. Of this amount, $1,300.0 million is
classified as long-term debt and the remaining $214.3 million is
classified as current portion of long-term debt.
The revolving credit agreements permit the Company to borrow
funds on a variety of interest rate terms. These agreements require,
among other things, that the Company maintain a certain Total
Indebtedness to Total Capital Ratio, as defined in the agreements. As
of March 31, 2001, the Company was in compliance with these
agreements.
The Company had outstanding at March 31, 2001 a total of $1,012.5
million (principal amount) of medium-term notes. The maturities on
these notes range from 3 to 30 years at an average interest rate of
6.34%.
-17-
A universal shelf registration statement became effective in July
1999. As of March 31, 2001, $449.5 million of Company debt and equity
securities may be issued under the shelf.
Uses:
Cash used in acquiring businesses was $15.4 million and $54.4
million in the first three months of 2001 and 2000, respectively. In
the first quarter of 2001, the Company made minor acquisitions for
cash purchase prices totaling $6.6 million; in the first quarter of
2000, the Company acquired Mersch SA and made other minor acquisitions
for cash purchase prices totaling $31.3 million. All of these
acquisitions were accounted for as purchases and were paid for with
proceeds obtained from the issuance of commercial paper.
Cash used for restructuring activities was $3.3 million and $0.8
million in the first three months of 2001 and 2000, respectively.
Such cash payments represent primarily employee termination benefits
and other merger expenses.
Capital expenditures were $59.7 million and $81.2 million in the
first three months of 2001 and 2000, respectively.
Aggregate dividends paid during the first three months of 2001
and 2000 were $56.0 million ($0.21 per share) and $57.1 million ($0.21
per share), respectively.
During the first three months of 2000, the Company repurchased
15.5 million shares of its common stock at an average price of $26 per
share, for a total cash price of $403.0 million under the Company's
stock repurchase program.
Retained earnings decreased in the first three months of 2001 by
$17.6 million. Retained earnings increased in the first three months
of 2000 by $19.0 million. The difference between 2001 and 2000 was
due to weaker operating results in 2001 versus 2000 and restructuring
costs in 2001 of $10.0 million ($6.3 million after taxes) and other
pre-tax charges of $4.1 million ($2.7 million after taxes).
Working capital at March 31, 2001 was $1,326.6 million compared
to $1,345.9 million at December 31, 2000. The current ratio at March
31, 2001 was 1.86:1 compared to 1.87:1 at December 31, 2000.
Total debt to total capitalization (total debt is net of cash and
cash equivalents, and total capitalization includes total debt,
convertible preferred securities and stockholders equity) was .47:1 at
March 31, 2001 and .46:1 at December 31, 2000.
The Company believes that cash provided from operations and
available borrowing facilities will continue to provide adequate
support for the cash needs of existing businesses; however, certain
events, such as significant acquisitions, could require additional
external financing.
-18-
MARKET RISK
-----------
The Company's market risk is impacted by changes in interest
rates, foreign currency exchange rates, and certain commodity prices.
Pursuant to the Company's policies, natural hedging techniques and
derivative financial instruments may be utilized to reduce the impact
of adverse changes in market prices. The Company does not hold or
issue derivative instruments for trading purposes.
The Company's primary market risk is interest rate exposure,
primarily in the United States. The Company manages interest rate
exposure through its conservative debt ratio target and its mix of
fixed and floating rate debt. Interest rate exposure was reduced
significantly in 1997 from the issuance of $500.0 million 5.25%
Company-Obligated Mandatorily Redeemable Convertible Preferred
Securities of a Subsidiary Trust, the proceeds of which reduced
commercial paper. Interest rate swaps may be used to adjust interest
rate exposures when appropriate based on market conditions, and, for
qualifying hedges, the interest differential of swaps is included in
interest expense.
The Company's foreign exchange risk management policy emphasizes
hedging anticipated intercompany and third-party commercial
transaction exposures of one year duration or less. The Company
focuses on natural hedging techniques of the following form: 1)
offsetting or netting of like foreign currency flows, 2) structuring
foreign subsidiary balance sheets with appropriate levels of debt to
reduce subsidiary net investments and subsidiary cash flows subject to
conversion risk, 3) converting excess foreign currency deposits into
U.S. dollars or the relevant functional currency and 4) avoidance of
risk by denominating contracts in the appropriate functional currency.
In addition, the Company utilizes forward contracts and purchased
options to hedge commercial and intercompany transactions. Gains and
losses related to qualifying hedges of commercial and intercompany
transactions are deferred and included in the basis of the underlying
transactions. Derivatives used to hedge intercompany loans are marked
to market with the corresponding gains or losses included in the
consolidated statements of income.
Due to the diversity of its product lines, the Company does not
have material sensitivity to any one commodity. The Company manages
commodity price exposures primarily through the duration and terms of
its vendor contracts.
The amounts shown below represent the estimated potential
economic loss that the Company could incur from adverse changes in
either interest rates or foreign exchange rates using the value-at-
risk estimation model. The value-at-risk model uses historical
foreign exchange rates and interest rates to estimate the volatility
and correlation of these rates in future periods. It estimates a loss
in fair market value using statistical modeling techniques and
including substantially all market risk exposures (specifically
excluding equity-method investments). The fair value losses shown in
-19-
the table below have no impact on results of operations or financial
condition as they represent economic, not financial, losses.
March 31, Time Confidence
2001 Period Level
---- ------ ----------
(In millions)
Interest rates $8.7 1 day 95%
Foreign exchange $2.4 1 day 95%
The 95% confidence interval signifies the Company's degree of
confidence that actual losses would not exceed the estimated losses
shown above. The amounts shown here disregard the possibility that
interest rates and foreign currency exchange rates could move in the
Company's favor. The value-at-risk model assumes that all movements
in these rates will be adverse. Actual experience has shown that
gains and losses tend to offset each other over time, and it is highly
unlikely that the Company could experience losses such as these over
an extended period of time. These amounts should not be considered
projections of future losses, since actual results may differ
significantly depending upon activity in the global financial markets.
EURO CURRENCY CONVERSION
------------------------
On January 1, 1999, the "Euro" became the common legal currency
for 11 of the 15 member countries of the European Union. On that
date, the participating countries fixed conversion rates between their
existing sovereign currencies ("legacy currencies") and the Euro. On
January 4, 1999, the Euro began trading on currency exchanges and
became available for non-cash transactions, if the parties elected to
use it. The legacy currencies will remain legal tender through
December 31, 2001. Beginning January 1, 2002, participating countries
will introduce Euro-denominated bills and coins, and effective July 1,
2002, legacy currencies will no longer be legal tender.
After the dual currency phase, all businesses in participating
countries must conduct all transactions in the Euro and must convert
their financial records and reports to be Euro-based. The Company has
commenced an internal analysis of the Euro conversion process to
prepare its information technology systems for the conversion and
analyze related risks and issues, such as the benefit of the decreased
exchange rate risk in cross-border transactions involving
participating countries and the impact of increased price transparency
on cross-border competition in these countries.
The Company believes that the Euro conversion process will not
have a material impact on the Company's businesses or financial
condition on a consolidated basis.
-20-
FORWARD LOOKING STATEMENTS
--------------------------
Forward-looking statements in this Report are made in reliance
upon the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Such forward-looking statements may relate to,
but are not limited to, such matters as sales, income, earnings per
share, return on equity, return on invested capital, capital
expenditures, working capital, dividends, capital structure, free cash
flow, debt to capitalization ratios, interest rates, internal growth
rates, Euro conversion plans and related risks, pending legal
proceedings and claims (including environmental matters), future
economic performance, operating income improvements, synergies,
management's plans, goals and objectives for future operations and
growth or the assumptions relating to any of the forward-looking
statements. The Company cautions that forward-looking statements are
not guarantees since there are inherent difficulties in predicting
future results. Actual results could differ materially from those
expressed or implied in the forward-looking statements. Factors that
could cause actual results to differ include, but are not limited to,
those matters set forth in this Report and Exhibit 99 to the Company's
Annual Report on Form 10-K for the year ended December 31, 2000.
-21-
PART I. FINANCIAL INFORMATION
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
----------------------------------------------------------
The information required by this item is incorporated herein by
reference to the section entitled "Market Risk" in the Company's
Management's Discussion and Analysis of Results of Operations and
Financial Condition (Part I, Item 2).
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
-----------------
The Company is subject to certain legal proceedings and claims,
including the environmental matters described below, that have arisen
in the ordinary conduct of its business or have been assumed by the
Company when it purchased certain businesses. Although management of
the Company cannot predict the ultimate outcome of these matters with
certainty, it believes that their ultimate resolution, including any
amounts it may be required to pay in excess of amounts reserved, will
not have a material effect on the Company's consolidated financial
statements.
As of March 31, 2001, the Company was involved in various matters
concerning federal and state environmental laws and regulations,
including matters in which the Company has been identified by the U.S.
Environmental Protection Agency and certain state environmental
agencies as a potentially responsible party ("PRP") at contaminated
sites under the Federal Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") and equivalent state laws.
In assessing its environmental response costs, the Company has
considered several factors, including: the extent of the Company's
volumetric contribution at each site relative to that of other PRPs;
the kind of waste; the terms of existing cost sharing and other
applicable agreements; the financial ability of other PRPs to share in
the payment of requisite costs; the Company's prior experience with
similar sites; environmental studies and cost estimates available to
the Company; the effects of inflation on cost estimates; and the
extent to which the Company's and other parties' status as PRPs is
disputed.
Based on information available to it, the Company's estimate of
environmental response costs associated with these matters as of March
31, 2001 ranged between $15.7 million and $21.6 million. As of March
31, 2001, the Company had a reserve equal to $19.3 million for such
environmental response costs in the aggregate. No insurance recovery
was taken into account in determining the Company's cost estimates or
reserve, nor do the Company's cost estimates or reserve reflect any
discounting for present value purposes, except with respect to two
-22-
long term (30 years) operation and maintenance CERCLA matters which
are estimated at present value.
Because of the uncertainties associated with environmental
investigations and response activities, the possibility that the
Company could be identified as a PRP at sites identified in the future
that require the incurrence of environmental response costs and the
possibility of additional sites as a result of businesses acquired,
actual costs to be incurred by the Company may vary from the Company's
estimates.
Subject to difficulties in estimating future environmental
response costs, the Company does not expect that any amount it may be
required to pay in connection with environmental matters in excess of
amounts reserved will have a material adverse effect on its
consolidated financial statements.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
--------------------------------
(a) Exhibits:
3.1 Restated Certificate of Incorporation of Newell
Rubbermaid Inc., as amended as of April 5, 2001.
10. Confidential Separation Agreement and General Release
dated as of March 20, 2001, between Daniel DalleMolle
and the Company.
12. Statement of Computation of Ratio of Earnings to Fixed
Charges
(b) Reports on Form 8-K:
Registrant filed a Report on Form 8-K dated March 12, 2001,
filing the Company's Consolidated Financial Statements and
Management's Discussion and Analysis of Financial Condition and
Results of Operations of Newell Rubbermaid Inc. for the fiscal
year ended December 31, 2000.
-23-
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 thereunto duly authorized.
NEWELL RUBBERMAID INC.
Registrant
Date: May 11, 2001 /s/ William T. Alldredge
--------------------------------
William T. Alldredge
Chief Financial Officer
Date: May 11, 2001 /s/ Brett E. Gries
--------------------------------
Brett E. Gries
Vice President - Accounting & Audit
-24-
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 NEWELLCO. (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
------------------ -----------------------
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.
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
2
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
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
3
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
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
4
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.
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,
5
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 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
6
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 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
7
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 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
8
time the determination is made for which f 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.
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.
9
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.
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
10
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
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
11
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
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
12
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
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
13
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.
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.
14
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.
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.
By /s/ William T. Alldredge
------------------------------------
William T. Alldredge
Vice President-Finance
ATTEST:
/s/ Roland E. Knecht
----------------------------
Roland E. Knecht
Secretary
15
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
16
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
senior to Cumulative Preferred Stock as to liquidation preferences.
If the assets of the Corporation are not sufficient to pay the full
17
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
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
18
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.
4. CONVERSION. The Cumulative Preferred Stock is not
convertible into any other class or series of common or preferred
stock of the Corporation.
19
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 therefore
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.
20
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.
By /s/ William T. Alldredge
------------------------------------
William T. Alldredge
Vice President - Finance
ATTEST:
/s/ Roland E. Knecht
----------------------------
Roland E. Knecht,
Secretary
21
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.
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
22
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
23
conversion of any outstanding securities issued by the Corporation
convertible into Series B Preferred Stock.
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 Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $15 per share on the Series B
24
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.
(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
25
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
(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
26
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
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
27
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
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.
28
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.
/s/ William T. Alldredge
-----------------------------------
William T. Alldredge
Vice President - Finance
Attest:
/s/ Roland E. Knecht
-------------------------
Roland E. Knecht
Secretary
29
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
9,990,000 shares of the par value of $1.00 per share.
30
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.
By /s/ William T. Alldredge
------------------------------
William T. Alldredge
Vice President - Finance
ATTEST:
/s/ Roland E. Knecht
--------------------------
Roland E. Knecht
Secretary
31
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 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.
32
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.
By /s/ William T. Alldredge
---------------------------------
William T. Alldredge
Vice President - Finance
ATTEST:
/s/ Roland E. Knecht
-------------------------
Roland E. Knecht
Secretary
33
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.
34
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.
/s/ William T. Alldredge
-----------------------------
William T. Alldredge
Vice President - Finance
Attest:
/s/ Roland E. Knecht
---------------------------
Roland E. Knecht
Secretary
35
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.
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.
36
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
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.
37
IN WITNESS WHEREOF, we have signed this certificate this 10th day
of May, 1995.
NEWELL CO.
By: /s/ Dale L. Matschullat
----------------------------
Dale L. Matschullat
Vice President
38
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 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
39
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
40
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
41
Filed May 27, 1999 at 4:30 p.m.
Delaware Secretary of State
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION OF
NEWELL RUBBERMAID INC.
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 Rubbermaid Inc., 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 Rubbermaid
Inc.
SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of the Corporation, as
heretofore amended, has been amended as follows:
FOURTH: The total number of shares which the Corporation
shall have authority to issue is 810,000,000, consisting of
800,000,000 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 9,990,999 shares of the par
value of $1.00 per share.
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 affirmative vote of the holders of a majority of
all outstanding shares of Common Stock entitled to vote at a meeting
of stockholders.
IN WITNESS WHEREOF, I have signed this certificate this 26th day
of May, 1999.
NEWELL RUBBERMAID INC.
By: /s/ Dale L. Matschullat
------------------------------
Dale L. Matschullat
Vice President - General Counsel
42
Filed April 5, 2001 at 9:00 a.m.
Delaware Secretary of State
CERTIFICATE OF CORRECTION
OF
NEWELL RUBBERMAID INC.
Pursuant to Section 103(f) of the General Corporation Law of the State
of Delaware, Newell Rubbermaid Inc., a corporation organized under the
laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation (hereinafter called the
"Corporation") is Newell Rubbermaid Inc.
2. The Certificate of Amendment of Restated Certificate of
Incorporation of Newell Rubbermaid Inc., which was filed with the
Secretary of State of Delaware on May 27, 1999 (the "Certificate of
Amendment"), contained an inaccurate record of the corporate action
therein referred to.
3. The inaccuracy in the Certificate of Amendment to be
corrected hereby is that the second paragraph of the Certificate of
Amendment stated, among other things, that the number of shares of
Preferred Stock, par value $1.00 per share, which the Corporation has
the authority to issue is 9,990,999 shares, when, in fact, the correct
number is 9,990,000 shares. The second paragraph of the Certificate
of Amendment is hereby corrected and restated in its entirety as
follows:
"SECOND: That the first sentence of Article Fourth of the
Restated Certificate of Incorporation of the Corporation, as
heretofore amended, has been amended as follows:
FOURTH: The total number of shares which the
Corporation shall have authority to issue is 810,000,000,
consisting of 800,000,000 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."
43
Signed and attested to on April 5th, 2001.
NEWELL RUBBERMAID INC.,
a Delaware corporation
/s/ Dale L. Matschullat
-------------------------------
Dale L. Matschullat
Vice President General Counsel
ATTEST:
/s/ Richard H. Wolff
-------------------------
Richard H. Wolff
Secretary
U:\EDGAR\NEWELL\EXH-3.1
44
EXHIBIT 10
----------
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This Confidential Separation Agreement and General Release
(hereinafter referred to as "Agreement") is made this 20th day of
March, 2001, by and between Daniel DalleMolle (hereinafter referred to
as "DalleMolle") and Newell Rubbermaid Inc. (hereinafter referred to
as "Newell").
WHEREAS, Newell decided to terminate DalleMolle's employment and
DalleMolle thereafter submitted his resignation as an employee of
Newell to be effective February 28, 2001; and
WHEREAS, DalleMolle desires to secure the severance benefits as
provided below; and recognizes that this package includes valuable
consideration to which he would not otherwise be entitled; and
WHEREAS, the parties desire to effect a final settlement of all
matters relating to DalleMolle's employment and his relationship with
Newell and have arrived at a compromise of all such matters.
NOW, THEREFORE, based upon the foregoing and in consideration of
the mutual covenants and promises contained herein and other good and
valuable consideration, the parties agree as follows:
1. Neither this Agreement nor any action taken by Newell
pursuant to it shall in any way be construed as an admission
by Newell of any liability, wrongdoing or violation of law,
regulation, contract or policy.
2. Newell agrees to pay and/or provide to DalleMolle the
following severance benefits in final settlement of all
claims DalleMolle may have against Newell:
a. Severance pay will be paid to DalleMolle at his base
salary in effect on February 28, 2001 on normal pay
periods less all legally required withholding for taxes
and social security through November 30, 2001. Such
payments will begin after the passage of seven (7) days
following DalleMolle's execution of this Agreement.
b. Medical group coverage, including coverage under the
Newell Medical Reimbursement Plan, will be continued
for DalleMolle through February 28, 2002, or, the date
DalleMolle secures other employment that provides
equivalent or better coverage, whichever event occurs
first. The above-mentioned coverages will be provided
on the same basis as such benefits are provided to
existing employees at his level. DalleMolle will
remain responsible for the partial payment of premiums
to the extent that existing employees pay such
premiums. With regard to medical and dental coverage,
for the purposes of the Consolidated Omnibus Budget
Reconciliation Act (COBRA), the date of the qualifying
event will be February 28, 2002.
c. All vested stock options held by DalleMolle pursuant to
the Newell Rubbermaid Stock Option Plan as of February
28, 2001 may be exercised by DalleMolle at any time
prior to November 30, 2001, including those that vest
during the period from February 28, 2001 to November
30, 2001. No further stock options will be granted to
DalleMolle.
d. DalleMolle will be allowed the use of his Newell lease
car until November 30, 2001. DalleMolle may, at his
discretion, purchase his Newell leased car at any time
prior to November 30, 2001 at the buy-out price as
established by the leased automobile program as of the
date of purchase.
e. DalleMolle's rights to distribution from his account in
the Newell Co. Deferred Compensation Plan, if any, are
governed by the terms of that Plan.
f. In lieu of providing DalleMolle executive level out
placement services, Newell will pay DalleMolle $50,000.
g. DalleMolle shall receive twelve (12) weeks vacation
pay.
h. DalleMolle will be paid no further wages, bonuses,
benefits, compensation or remuneration of any kind
subsequent to February 28, 2001, other than those
specifically provided above.
3. DalleMolle hereby resigns from Newell as an employee
effective February 28, 2001 and expressly declines
reinstatement, employment and rehire by Newell and waives
all rights to claim such relief and agrees never to seek or
apply for employment with Newell or any of its subsidiaries,
divisions, affiliated businesses or parent companies in the
future.
4. DalleMolle agrees that this Agreement and all its terms and
provisions are strictly confidential and shall not be
divulged or disclosed in any way to any person other than
his spouse, legal counsel and tax advisor if he so desires,
and that he will protect the confidentiality of the
Agreement in all regards. Should DalleMolle choose to
divulge the terms and conditions of the Agreement to his
spouse, legal counsel or tax advisor, he shall ensure that
they will be similarly bound to protect its confidentiality
2
and that a breach of the paragraph by DalleMolle's spouse,
legal counsel or tax advisor shall be considered a breach of
the paragraph by DalleMolle.
5. DalleMolle represents that he has not filed any pending
complaint, charge, claim or grievance against Newell with
any local, state or federal agency, court or commission.
6. (a) DalleMolle acknowledges that:
(i) As a result of his employment with Newell he has
obtained secret and confidential information
concerning the business of Newell and its
subsidiaries and divisions, including, without
limitation, the operations and finances, the
business plan, the identity of potential
acquisitions, the identity of customers and
sources of supply, their needs and requirements,
the nature and extent of contracts with them,
product and process specifications and related
costs, price, profitability and sales information;
(ii) Newell and its subsidiaries and divisions will
suffer substantial damage which will be difficult
to compute if DalleMolle should enter into a
Competitive Business (as defined below), unless
approved by Newell in writing and in advance, or
if he should divulge secret and confidential
information relating to the business of Newell
heretofore acquired by him in the course of his
employment with Newell; and
(iii) The provisions of this Agreement are reasonable
and necessary for the protection of the business
of Newell and its subsidiaries and divisions.
b. DalleMolle agrees that he will not for a period of one
(1) years following the date of his resignation divulge
to any person, firm or corporation, or use for his own
benefit, any secret or confidential information
obtained or learned by him in the course of his
employment with Newell with regard to the operational,
financial, business or other affairs of Newell or its
subsidiaries and divisions, including, without
limitation, proprietary trade "know how" and secrets,
financial information and models, customer lists,
business, marketing, sales and acquisition plans,
identity and qualifications of Newell's employees,
sources of supply, pricing policies, proprietary
operational methods, product specifications or
technical processes, except (i) with Newell's express
written consent; or (ii) to the extent that any such
3
information is in or becomes part of the public domain
other than as a result of DalleMolle's breach of any of
his obligations hereunder.
c. Except as provided herein, DalleMolle represents that
he has no later than the date he signs this Agreement,
delivered to Newell all memoranda, notes, files,
computers, software, discs, memory storage records,
reports, manuals, drawings, blueprints, credit cards
and other documents (and all copies thereof) and other
tools provided to DalleMolle by Newell relating to the
business of Newell and its subsidiaries and divisions
and all property associated therewith which he may
possess or have under his control. DalleMolle further
represents that he has neither kept, created, nor
downloaded any copy of Newell's computer records.
d. For a period of one (1) years following the date of his
resignation, DalleMolle, without the prior express
written permission of Newell, shall not solicit, induce
or entice, or cause any other person or entity to
solicit, recruit, induce or entice to leave the employ
of Newell or any of its subsidiaries or divisions any
person employed or retained by Newell or any of its
subsidiaries or divisions. Nothing in this provision
prevents DalleMolle from hiring any individual who has
without encouragement or suggestion by DalleMolle
initiated the contact with DalleMolle and who has on
his/her own accord affirmatively communicated to
DalleMolle that he/she has finalized a decision to
leave Newell or one of its subsidiaries or divisions.
e. For a period of two (2) years following the date
DalleMolle signed this Agreement, DalleMolle, without
the prior express written permission of Newell, shall
not (i) enter into the employ of or render any
services, in an executive, managerial, sales, financial
or strategic planning capacity, to any person, firm, or
corporation engaged in the manufacture, sale or
distribution of products currently being designed,
developed, manufactured, sold or distributed by Newell
or any of its subsidiaries or divisions which directly
or indirectly compete with the LeeRowan, BernzOmatic,
Amerock, Newell Hardware Europe, EZ Paintr, Anchor
Hocking Consumer Glass, and Anchor Hocking Specialty
Glass business operations as conducted as of the date
DalleMolle signed this Agreement (a "Competitive
Business"), or (ii) engage in any Competitive Business
for his own account or (iii) solicit, interfere with or
endeavor to entice away from Newell any of its
customers with which DalleMolle had contact or
communication during his employment with Newell. The
4
covenants contained in paragraphs 6(e)(i) and (ii)
shall apply only as to Competitive Business located or
doing business in the United States, Canada or Europe.
f. DalleMolle agrees that he will conduct himself in a
professional manner and not make any disparaging or
negative statements regarding Newell, its subsidiaries
or divisions or their officers, directors or employees
at any time in the future.
g. If DalleMolle commits a breach, or threatens to commit
a breach, of any of the provisions of paragraph 6,
Newell shall have the right:
(i) to have the provisions of this Agreement
specifically enforced by and obtain any other
relief to which it is entitled by law or equity
from any court having jurisdiction; and
(ii) to require DalleMolle to pay over to Newell and/or
forfeit all severance benefits provided in
paragraph 2 of this Agreement and to account for
and pay over to Newell all compensation, profits,
monies, accruals, increments or other benefits
(collectively "Benefits") derived or received by
him as the result of any transactions constituting
a breach of any of the provisions of paragraph 6,
and DalleMolle hereby agrees to account for and
pay over such Benefits to Newell.
(iii) discontinue the payment of any further severance
benefits.
h. Each of the rights and remedies enumerated in this
paragraph 6 shall be independent of the other, and
shall be severally enforceable, and such rights and
remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to Newell in
law or equity at any time in the future.
7. Following his resignation and throughout his period of
severance pay, DalleMolle shall, upon reasonable notice and
at reasonable times, (having due regard for the conflicting
obligations arising from any other employment or engagement
of DalleMolle), advise and assist Newell in preparing such
operational, financial or other reports or other filings as
Newell may reasonably request, and to respond to inquiries
concerning the operations, finances and business of Newell
and otherwise cooperate with Newell and its affiliates as
Newell shall reasonably request. Furthermore, upon
reasonable notice, DalleMolle agrees to cooperate with
Newell at Newell's request in prosecuting or defending
5
against any litigation, complaints or claims against or
involving Newell or any of its subsidiaries, divisions or
affiliated businesses at any time in the future.
8. As a material inducement to Newell to enter the Agreement,
DalleMolle hereby irrevocably and unconditionally releases,
acquits and forever discharges Newell, its successors,
assigns, agents, directors, officers, employees,
representatives, subsidiaries, divisions, parent
corporations and affiliates, and all other persons acting
by, through or in concert with any of them (collectively
"Releasees") from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, actions,
damages, expenses (including attorneys' fees and costs
actually incurred), or any rights of any and every kind or
nature, accrued or unaccrued, known and unknown, which
DalleMolle has or claims to have against each or any of the
Releasees. This release pertains to but is in no way
limited to all matters relating to or arising out of
DalleMolle's employment and termination of employment by
Newell and all claims for severance benefits. The release
further pertains to but is in no way limited to rights and
claims under the Age Discrimination in Employment Act of
1967 (29 U.S.C. 621, et seq.), Title VII of the Civil
Rights Act, as amended, the Americans With Disabilities Act,
and all state, local or municipal fair employment laws.
9. The Agreement shall be binding upon DalleMolle and upon his
heirs, administrators, representatives, executors,
successors, and assigns and shall inure to the benefit of
the Releasees and to their heirs, administrators,
representatives, executors, successors, and assigns.
10. As a further material inducement to Newell to enter into
this Agreement, DalleMolle hereby agrees to indemnify and
hold each and all of the Releasees harmless from and against
any and all loss, cost, damage or expense, including,
without limitation, attorneys' fees incurred by Releasees,
arising out of the breach of the Agreement by DalleMolle.
11. The parties understand and agree that the Agreement is final
and binding and constitutes the complete and exclusive
statement of the terms and conditions of settlement, that no
representations or commitments were made by the parties to
induce the Agreement other than as expressly set forth
herein and that the Agreement is fully understood by the
parties. DalleMolle further represents that he has had the
opportunity and time to consult with legal counsel
concerning the provisions of the Agreement and that he has
been given twenty-one (21) days within which to execute the
Agreement and seven (7) days following his execution to
revoke the Agreement. The Agreement may not be modified or
6
supplemented except by a subsequent written Agreement signed
by the party against whom enforcement of the modification is
sought.
12. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of
the State of Illinois, without regard to its conflicts of
laws rules.
13. DalleMolle acknowledges that he has carefully read the
entire document, that a copy of the document was available
to him prior to execution, that he knows and understands the
provisions of the document, and that he has signed the
document as his own free act and deed.
[The rest of the page has been left purposely blank]
7
IN WITNESS WHEREOF, the parties herein executed the Agreement as
of the date appearing next to their signatures.
NEWELL RUBBERMAID INC.
Date: March 23, 2001 By: /s/ Dale L. Matschullat
------------------------------
Name: Dale L. Matschullat
Title: Vice President General
Counsel
CAUTION: THIS IS A RELEASE. CONSULT WITH AN ATTORNEY AND READ IT
BEFORE SIGNING. THIS AGREEMENT MAY BE REVOKED IN WRITING BY YOU
WITHIN SEVEN (7) DAYS OF YOUR EXECUTION OF THE DOCUMENT.
Date: March 21, 2001 /s/ Daniel DalleMolle
-------------------------------------
Daniel DalleMolle
STATE OF ARIZONA )
) SS.
COUNTY OF MARICOPA )
On the 21st day of March, 2001, Daniel DalleMolle appeared before
me and, after being duly sworn, did say that he acknowledged the
instrument to be his voluntary act.
In witness whereof, I hereunto set my hand and
official seal:
/s/ Lisa R. Russo
---------------------------------------
Notary Public
8
EXHIBIT 12
----------
NEWELL RUBBERMAID INC. AND SUBSIDIARIES
STATEMENT OF COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands, except ratio data)
THREE MONTHS ENDED MARCH 31,
2001 2000
---- ----
(In thousands, except ratio data)
Earnings available to fixed charges:
Income before income taxes $ 60,987 $123,935
Fixed charges:
Interest expense 39,321 27,849
Portion of rent determined to be interest (1) 8,941 10,608
Minority interest in income of subsidiary trust 6,677 6,685
Eliminate equity in earnings of
unconsolidated entities (2,306) (2,174)
-------- --------
$113,620 $166,903
======== ========
Fixed charges:
Interest expense $ 39,321 $ 27,849
Portion of rent determined to be
interest (1) 8,941 10,608
Minority interest in income of
subsidiary trust 6,677 6,685
--------- ---------
$ 54,939 $ 45,142
========= =========
Ratio of earnings to fixed charges 2.07 3.70
========= =========
(1) A standard ratio of 33% was applied to gross rent expense to approximate the interest
portion of short-term and long-term leases.
