As filed with the Securities and Exchange Commission on May 16, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
NEWELL RUBBERMAID INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3514169
-------- ----------
(I.R.S. employer
(State or other jurisdiction identification no.)
of incorporation or
organization)
10B Glenlake Parkway
Suite 300
Atlanta, Georgia 30328
(Address of principal executive offices, including zip code)
NEWELL RUBBERMAID INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Dale L. Matschullat
Vice President-General Counsel & Corporate Secretary
10B Glenlake Parkway
Suite 300
Atlanta, Georgia 30328
(Name and address of agent for service)
(770) 407-3830
(Telephone number, including area code, of agent for service)
With a copy to:
Lauralyn G. Bengel
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
CALCULATION OF REGISTRATION FEE
-------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
----------------------------------- ---------- -------------- -------------- -----------------
Common Stock, par value $1.00 per share 5,000,000 $27.37 (1) $136,850,000 (1) $14,642.95 (1)
(including Common Stock Purchase Rights)
Interests in the Plan (2) (2) (2) (2)
(1) Estimated on the basis of $27.37 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 12, 2006. (See Rules 457(c) and
457(h) of the Securities Act of 1933.)
(2) 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.
(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.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2005.
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2006.
(c) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 since the end of 2005.
(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.
(e) The description of the Registrant's Rights contained in the
Registration Statement on Form 8-A/A filed on October 27,
2003.
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 to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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
3
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
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
4
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 or
employee of Rubbermaid or any of its subsidiaries against any losses,
expenses, claims, damages or liabilities (1) arising out of acts or
omissions occurring at or prior to the Effective Time that are based
on or arising out of the fact that such person is or was a director,
officer or employee of Rubbermaid or any of its subsidiaries or served
as a fiduciary under or with respect to any Rubbermaid employee
benefit plan and (2) to the extent they are based on or arise out of
the transactions contemplated by the Merger Agreement.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits filed herewith or incorporated by reference herein
are set forth on the Exhibit Index filed as part of this Registration
Statement.
5
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
(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 with or
furnished to the Commission 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, where
applicable, 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
6
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
7
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities
Act of 1933, 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 Atlanta, State of Georgia, on the 10th day of May,
2006.
NEWELL RUBBERMAID INC.
(Registrant)
By: /s/ Mark D. Ketchum
--------------------
Mark D. Ketchum
President and Chief
Executive Officer
Each person whose signature appears below appoints J. Patrick
Robinson, Ronald L. Hardnock and 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/ Mark D. Ketchum President and Chief May 10, 2006
------------------------------ Executive Officer
Mark D. Ketchum (Principal Executive
Officer) and Director
8
SIGNATURE TITLE DATE
--------- ----- ----
/s/ J. Patrick Robinson Vice President - Chief May 10, 2006
------------------------------ Financial Officer
J. Patrick Robinson (Principal Financial
Officer)
/s/ Ronald L. Hardnock Vice President - May 10, 2006
------------------------------ Corporate Controller
Ronald L. Hardnock (Principal Accounting
Officer)
/s/ Thomas E. Clarke Director May 10, 2006
------------------------------
Thomas E. Clarke
/s/ Scott S. Cowen Director May 10, 2006
------------------------------
Scott S. Cowen
/s/ Michael T. Cowhig Director May 10, 2006
------------------------------
Michael T. Cowhig
/s/ William D. Marohn Chairman of the Board May 10, 2006
------------------------------ and Director
William D. Marohn
/s/ Elizabeth Cuthbert Millett Director May 10, 2006
------------------------------
Elizabeth Cuthbert Millett
/s/ Cynthia A. Montgomery Director May 10, 2006
------------------------------
Cynthia A. Montgomery
/s/ Allan P. Newell Director May 10, 2006
------------------------------
Allan P. Newell
/s/ Steven J. Strobel Director May 10, 2006
------------------------------
Steven J. Strobel
9
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Gordon R. Sullivan Director May 10, 2006
------------------------------
Gordon R. Sullivan
/s/ Raymond G. Viault May 10, 2006
------------------------------ Director
Raymond G. Viault
10
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 Atlanta, State of Georgia, on May 10,
2006.
NEWELL RUBBERMAID INC.
EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Thomas E. Clarke
--------------------------
Thomas E. Clarke
Chairman, Organizational
Development & Compensation
Committee
11
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------- -------
4 Rights Agreement, dated as of August 6, 1998,
between the Company and First Chicago Trust
Company of New York, as Rights Agent
(incorporated by reference to Exhibit 4 to
the Company's Current Report on Form 8-K
dated August 6, 1998, File No. 001-09608), as
amended by a First Amendment to Rights
Agreement effective as of September 29, 2003,
between the Company and The Bank of New York,
as Rights Agent (incorporated by reference to
Exhibit 4.2 to the Company's Registration
Statement on Form 8-A/A, filed October 27,
2003).
23 Consent of Ernst & Young LLP.
24 Power of Attorney (set forth on the signature
page).
12
EXHIBIT 23
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Newell Rubbermaid Inc. Employee
Stock Purchase Plan of our reports dated February 8, 2006, with
respect to the consolidated financial statements and schedule of
Newell Rubbermaid Inc., Newell Rubbermaid Inc. management's assess-
ment of the effectiveness of internal control over financial reporting,
and the effectiveness of internal control over financial reporting of
Newell Rubbermaid Inc., included in its Annual Report (Form 10-K) for
the year ended December 31, 2005, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
May 12, 2006
