As filed with the Securities and Exchange Commission on May 12, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEWELL RUBBERMAID INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3514169
(State or other (I.R.S. employer
jurisdiction of identification no.)
incorporation or
organization)
DEERFIELD CORPORATE CENTRE ONE
13010 MORRIS ROAD, SUITE 100
ALPHARETTA, GEORGIA 30004
(Address of principal executive offices, including zip code)
NEWELL RUBBERMAID INC. 2002 DEFERRED COMPENSATION PLAN
(Full title of the plan)
DALE L. MATSCHULLAT
VICE PRESIDENT-GENERAL COUNSEL
6833 STALTER DRIVE, SUITE 101
ROCKFORD, ILLINOIS 61108
(Name and address of agent for service)
(815) 381-8114
(Telephone number, including area code, of agent for service)
WITH A COPY TO:
LAURALYN G. BENGEL
SCHIFF HARDIN & WAITE
6600 SEARS TOWER
CHICAGO, ILLINOIS 60606
(312) 258-5500
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CALCULATION OF REGISTRATION FEE
AMOUNT PROPOSED PROPOSED
TITLE OF SECURITIES TO BE TO BE MAXIMUM MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE AGGREGATE REGISTRATION FEE
PER SHARE OFFERING PRICE
Deferred Compensation Obligations $30,000,000 (1) N/A $30,000,000 $2,427.00
Common Stock, par value $1.00
per share (including Common
Stock Purchase Rights) 500,000(2)(3) $29.085(4) $14,542,500(4) $1,176.49(4)
Interests in the Plans (5) (5) (5) (5)
(1) Deferred Compensation Obligations represent general unsecured
obligations of the Registrant to pay deferred compensation in
accordance with the above-referenced Plan.
(2) The $30,000,00 in Deferred Compensation Obligations includes
the value of 500,000 shares of Common Stock issuable under the Plan.
(3) Pursuant to Rule 416 of the Securities Act of 1933, this Registration
Statement shall also cover any additional shares of Common Stock
which become issuable under the Plan pursuant to this Registration
Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(4) Estimated on the basis of $29.085 per share, the average of the high
and low sales prices of the Common Stock as reported on the
New York Stock Exchange on May 6, 2003. (See Rules 457(c) and 457(h)
of the Securities Act of 1933.) This portion of the Registration
Fee is included in the $2,427.00 Registration Fee paid with respect
to the Deferred Compensation Obligations.
(5) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Plan
described herein for which no separate fee is required.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Newell Rubbermaid Inc. (the
"Registrant") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2002;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2003;
(c) The Registrant's current reports on Form 8-K filed on
January 8, 2003, January 10, 2003, January 22, 2003, May 5,
2003 and May 6, 2003.
(d) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-B filed
on June 30, 1987; and
(e) The description of the Registrant's Rights contained in the
Registration Statement on Form 8-A12B dated August 28, 1998.
All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The Plan provides a select group of management or highly
compensated employees of the Registrant and its affiliates with an
opportunity to defer a portion of their pre-tax compensation
(including base salary, director fees and bonus) and accrue tax-
deferred earnings (or losses) on the amount that is deferred. Each
Plan participant is an unsecured general creditor of the Registrant
with respect to his or her own interest in the Plan. Benefits are
payable solely from the general funds of the Registrant. The amount
of compensation to be deferred under the Plan is based on elections by
each Plan participant in accordance with the terms of the Plan, and
the obligation of the Registrant to pay such deferred compensation
(the "Obligations") will become due as pre-designated by each Plan
participant or on retirement, death or other termination of employment
in the form and on the date or dates determined in accordance with the
terms of the Plan.
The Obligations will track one or more investment alternatives
chosen by each Plan participant, and the amount of the Obligations
payable to each Plan participant will increase or decrease based on
the investment returns of the chosen investment alternatives. One of
the available investment alternatives is investment in the
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Registrant's Common Stock. However, the Plan participants will have
no ownership interest in any of the investment alternatives.
The Obligations cannot be assigned, transferred, pledged or
otherwise encumbered by the Plan participants, except that each Plan
participant may designate one or more beneficiaries to receive
benefits upon his or her death. The Registrant reserves the right to
amend or partially or completely terminate the Plan, provided that
such amendment or termination does not result in any reduction of a
Plan participant's account balance, including previous earnings or
losses, as of the date of such amendment or termination.
The total amount of Obligations being registered pursuant to this
Registration Statement is $30,000,000, which includes 500,000 shares
of Common Stock being registered as well.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware law allows a corporation to eliminate
the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except in cases where the director breached his or her duty
of loyalty to the corporation or its stockholders, failed to act in
good faith, engaged in intentional misconduct or a knowing violation
of the law, willfully or negligently authorized the unlawful payment
of a dividend or approved an unlawful stock redemption or repurchase
or obtained an improper personal benefit. The Registrant Charter
contains a provision which eliminates directors' personal liability as
set forth above.
The Charter and the Bylaws of the Registrant provide in effect
that the Registrant shall indemnify its directors and officers to the
extent permitted by the Delaware law. Section 145 of the Delaware law
provides that a Delaware corporation has the power to indemnify its
directors, officers, employees and agents in certain circumstances.
Subsection (a) of Section 145 of the Delaware law empowers a
corporation to indemnify any director, officer, employee or agent, or
former director, officer, employee or agent, who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding
provided that such director, officer, employee or agent acted in good
faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, provided that such director,
officer, employee or agent had no reasonable cause to believe that his
or her conduct was unlawful.
Subsection (b) of Section 145 of the Delaware law empowers a
corporation to indemnify any director, officer, employee or agent, or
former director, officer, employee or agent, who was or is a party or
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is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of such action or suit
provided that such person acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests
of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery shall determine that despite the
adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem
proper.
Section 145 further provides that to the extent that a director
or officer or employee of a corporation has been successful in the
defense of any action, suit or proceeding referred to in subsections
(a) and (b) or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection
therewith; that indemnification provided by Section 145 shall not be
deemed exclusive of any other rights to which the party seeking
indemnification may be entitled; and the corporation is empowered to
purchase and maintain insurance on behalf of a director, officer,
employee or agent of the corporation against any liability asserted
against him or her or incurred by him or her in any such capacity or
arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145; and that, unless indemnification is
ordered by a court, the determination that indemnification under
subsections (a) and (b) of Section 145 is proper because the director,
officer, employee or agent has met the applicable standard of conduct
under such subsections shall be made by (1) a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or
if such directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders.
The Registrant has in effect insurance policies for general
officers' and directors' liability insurance covering all of the
Registrant's officers and directors. The Registrant also has entered
into indemnification agreements with each of its officers and
directors that provide that the officers and directors will be
entitled to their indemnification rights as they existed at the time
they entered into the agreements, regardless of subsequent changes in
the Registrant's indemnification policy.
Pursuant to an Agreement and Plan of Merger by and between Newell
Co., Rooster Company and Rubbermaid Incorporated dated as of October
20, 1998 (the "Merger Agreement"), the Registrant will, to the fullest
extent not prohibited by applicable law, indemnify, defend and hold
harmless each person who is now, or has been at any time prior to the
date of the merger agreement, or who becomes prior to the Effective
Time (as defined in the Merger Agreement), an officer, director of
employee of Rubbermaid or any of its subsidiaries against any losses,
expenses, claims, damages or liabilities (1) arising out of acts or
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omissions occurring at or prior to the Effective Time that are based
on or arising out of the fact that such person is or was a director,
officer or employee of Rubbermaid or any of its subsidiaries or served
as a fiduciary under or with respect to any Rubbermaid employee
benefit plan and (2) to the extent they are based on or arise out of
the transactions contemplated by the Merger Agreement.
Additionally, for six years after the Effective Time, the
Registrant will maintain in effect Rubbermaid's current directors' and
officers' liability insurance covering acts or omissions occurring
prior to the Effective Time with respect to those persons who are
currently covered by Rubbermaid's directors' and officers' liability
insurance policy on terms with respect to such coverage and amount no
less favorable than those of such policy in effect on the date of the
Merger Agreement; provided that the Registrant may substitute policies
of the Registrant or its subsidiaries containing terms with respect to
coverage and amount no less favorable to such directors or officers.
The Registrant will not be required to pay aggregate premiums for the
insurance described in this paragraph in excess of 200% of the
aggregate premiums paid by Rubbermaid in 1998, except that if the
annual premiums of such insurance coverage exceed such amount, the
Registrant will be obligated to obtain a policy with the best coverage
available, in the reasonable judgment of the Registrant's Board, for a
cost up to but not exceeding such amount.
For six years after the Effective Time, the Registrant will also
maintain in effect Rubbermaid's current fiduciary liability insurance
policies for employees who serve or have served as fiduciaries under
any Rubbermaid benefit plan with coverages and in amounts no less
favorable than those of such policy in effect on the date of the
Merger Agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits filed herewith or incorporated by reference herein
are set forth in the Exhibit Index filed as part of this registration
statement on page 9 hereof.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and
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(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and each filing
of the Plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable
grounds to believe that it meets all the requirements for filing on
Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the
City of Rockford, State of Illinois, on the 7th day of May, 2003.
NEWELL RUBBERMAID INC.
(Registrant)
By: /s/ William T. Alldredge
--------------------------------
William T. Alldredge
President - Corporate
Development and Chief
Financial Officer
Each person whose signature appears below appoints Joseph Galli,
Jr., William T. Alldredge, Andrea L. Horne or Dale L. Matschullat or
any one of them, as such person's true and lawful attorneys to execute
in the name of each such person, and to file, any pre-effective or
post-effective amendments to this Registration Statement that any of
such attorneys shall deem necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and
any rules, regulations and requirements of the Securities and Exchange
Commission with respect thereto, in connection with this Registration
Statement, which amendments may make such changes in such Registration
Statement as any of the above-named attorneys deems appropriate, and
to comply with the undertakings of the Registrant made in connection
with this Registration Statement; and each of the undersigned hereby
ratifies all that any of said attorneys shall do or cause to be done
by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- -----
/s/ Joseph Galli, Jr. President, Chief Executive Officer May 7, 2003
----------------------------- (Principal Executive Officer) and
Joseph Galli, Jr. Director
/s/ J. Patrick Robinson Vice President - Corporate Controller May 7, 2003
----------------------------- and Chief Accounting Officer (Principal
J. Patrick Robinson Accounting Officer)
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SIGNATURE TITLE DATE
--------- ----- -----
/s/ William T. Alldredge President - Corporate Development and May 7, 2003
----------------------------- Chief Financial Officer (Principal
William T. Alldredge Financial Officer)
/s/ Thomas E. Clarke Director February 10, 2003
-----------------------------
Thomas E. Clarke
/s/ Scott S. Cowen Director February 10, 2003
-----------------------------
Scott S. Cowen
/s/ Alton F. Doody Director February 10, 2003
-----------------------------
Alton F. Doody
/s/ William D. Marohn Director February 10, 2003
-----------------------------
William D. Marohn
/s/ Elizabeth Cuthbert Millett Director February 10, 2003
-----------------------------
Elizabeth Cuthbert Millett
/s/ Cynthia A. Montgomery Director February 10, 2003
-----------------------------
Cynthia A. Montgomery
/s/ Allan P. Newell Director February 10, 2003
-----------------------------
Allan P. Newell
/s/ William P. Sovey Chairman of the Board and Director February 10, 2003
-----------------------------
William P. Sovey
/s/ Gordon R. Sullivan Director February 10, 2003
-----------------------------
Gordon R. Sullivan
/s/ Raymond G. Viault Director February 10, 2003
-----------------------------
Raymond G. Viault
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THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Plan Administrator has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Freeport, State of Illinois, on May 9, 2003.
NEWELL RUBBERMAID INC.
2002 DEFERRED COMPENSATION PLAN
By: /s/ Thomas J. Nohl
-----------------------------
Thomas J. Nohl
Benefits Plans Committee
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
------- -------
4 Rights Agreement, dated as of August 6, 1998, between Newell
and First Chicago Trust Company of New York (incorporated by
reference to Exhibit I to Newell's Registration Statement on
Form 8-A12B (Reg. No. 1-09608), filed with the Commission on
August 28, 1998).
5 Opinion of Schiff Hardin & Waite.
23.1 Consent of Ernst & Young LLP.
23.2 Information Regarding Consent of Arthur Andersen LLP.
23.3 Consent of Schiff Hardin & Waite (contained in the Opinion
filed as Exhibit 5).
24 Power of Attorney (set forth on the signature page).
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EXHIBIT 5
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May 9, 2003
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: NEWELL RUBBERMAID INC.- REGISTRATION OF
DEFERRED COMPENSATION OBLIGATIONS ON FORM S-8
---------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Newell Rubbermaid Inc., a
Delaware corporation (the "Company"), in connection with the
Company's filing of a Registration Statement on Form S-8 (the
"Registration Statement") covering the registration of an
aggregate amount of $30,000,000 of Deferred Compensation
Obligations, which represent unsecured obligations of the Company
to pay deferred compensation in the future in accordance with the
terms of the Newell Rubbermaid Inc. 2002 Deferred Compensation
Plan (the "Plan").
In this connection we have made such investigation and have
examined such documents as we have deemed necessary in order to
enable us to render the opinion contained herein.
Based on the foregoing, it is our opinion that, when issued
in accordance with the terms of the Plan, and pursuant to the
Registration Statement, the Deferred Compensation Obligations
will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or
other laws of general applicability relating to or affecting
enforcement of creditors rights or by general equity principles.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Lauralyn G. Bengel
----------------------
Lauralyn G. Bengel
EXHIBIT 23.1
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the registration of $30.0 million
of deferred compensation obligations including 500,000 shares of
common stock for the Newell Rubbermaid Inc. 2002 Deferred Compensation Plan
of our report dated January 27, 2003, with respect to the 2002 consolidated
financial statements and schedule of Newell Rubbermaid Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 2002,
filed with the Securities and Exchange Commission
/s/ Ernst & Young, LLP
Chicago, Illinois
May 12, 2003
EXHIBIT 23.2
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INFORMATION REGARDING CONSENT
OF ARTHUR ANDERSEN LLP
The Registrant's consolidated financial statements and schedules as of
December 31, 2001 and 2000 and for each of the two years in the
period ended December 31, 2002 incorporated by reference in this
Registration Statement have been audited by Arthur Andersen LLP,
independent auditors, as stated in their reports with respect thereto.
After such reasonable efforts, the Registrant has been unable to
obtain Arthur Andersen LLP's written consent to the incorporation by
reference of such financial statements. Accordingly, the Registrant
has omitted such consent in reliance upon Rule 437a under the
Securities Act of 1933.
Because Arthur Andersen LLP has not consented to the incorporation by
reference of the financial statements, Plan participants may not be
able to recover against Arthur Andersen LLP under Section 11 of the
Securities Act of 1933 for any untrue statements of a material fact
contained in such financial statements or any omissions to state a
material fact required to be stated therein.
Events arising out of the conviction of Arthur Andersen LLP of one
count of obstruction of justice arising from the government's
investigation of Enron Corporation, as well as the volume of civil
lawsuits filed against it, have adversely affected the ability of
Arthur Andersen to satisfy claims, if any, arising from its provision
of auditing services to the Registrant, including claims that may
arise out of Arthur Andersen's audit of the Registrant's consolidated
financial statements, which are incorporated by reference in this
Registration Statement.
