As filed with the Securities and Exchange Commission on February 8, 2008
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
(State or other (I.R.S. employer
jurisdiction of identification no.)
incorporation or
organization)
10B Glenlake Parkway
Suite 300
Atlanta, Georgia 30328
(Address of principal executive offices, including zip code)
NEWELL RUBBERMAID INC. 2008 DEFERRED COMPENSATION PLAN
(Full title of the plan)
Dale L. Matschullat
Senior Vice President, General Counsel and 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) 258-5670
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
to be price offering price registration
Title of Securities to be Registered registered per share --------- fee
------------------------------------ ---------- -------- ------------
Deferred Compensation Obligations $50,000,000(1) N/A $50,000,000 $1,965.00
Interests in the Plan (2) (2) (2) (2)
(1) Deferred Compensation Obligations represent general unsecured obligations of the Registrant to pay
deferred compensation in accordance with the above-referenced Plan.
(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.
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, 2006;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2007, June 30, 2007 and September
30, 2007;
(c) All other reports of the Registrant filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended, since the end of 2006; and
(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.
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, and non-
employee directors of the Registrant, with an opportunity to defer a
portion of their compensation (including base salary, bonus and
director fees) on a pre-tax basis. The Registrant may make
discretionary credits of employer contributions to participants'
accounts under the Plan. Participants' accounts also reflect certain
amounts transferred from their accounts under the Newell Rubbermaid
Inc. 2002 Deferred Compensation Plan. The amount of compensation
deferred under the Plan is based on elections by each Plan participant
in accordance with the terms of the Plan, the Registrant
contributions, the amounts, if any, transferred to their accounts
under the Plan and the earnings or losses thereon. 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.
Amounts deferred under the Plan will be credited with investment
returns based on investment alternatives chosen by each Plan
participant, and the amount of the Obligations payable to each Plan
participant will reflect the investment returns of the chosen
investment alternatives. However, the Plan participants will have no
ownership interest in any of the investment alternatives. 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 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 $50,000,000.
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
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 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 in the Exhibit Index filed as part of this Registration
Statement.
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 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 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.
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 7th day of November,
2007.
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, Rick T. Dillon 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 November 7, 2007
----------------------------- Executive Officer
Mark D. Ketchum (Principal Executive
Officer) and Director
/s/ J. Patrick Robinson Executive Vice November 7, 2007
----------------------------- President - Chief
J. Patrick Robinson Financial Officer
(Principal Financial
Officer)
/s/ Rick T. Dillon Vice President - November 7, 2007
----------------------------- Corporate Controller
Rick T. Dillon (Principal Accounting
Officer)
/s/ Thomas E. Clarke Director November 7, 2007
-----------------------------
Thomas E. Clarke
/s/ Scott S. Cowen Director November 7, 2007
-----------------------------
Scott S. Cowen
/s/ Michael T. Cowhig Director November 7, 2007
-----------------------------
Michael T. Cowhig
/s/ William D. Marohn Chairman of the Board November 7, 2007
----------------------------- and Director
William D. Marohn
/s/ Elizabeth Cuthbert Millet Director November 7, 2007
-----------------------------
Elizabeth Cuthbert Millett
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Cynthia A. Montgomery Director November 7, 2007
-----------------------------
Cynthia A. Montgomery
/s/ Steven J. Strobel Director November 7, 2007
-----------------------------
Steven J. Strobel
/s/ Gordon R. Sullivan Director November 7, 2007
-----------------------------
Gordon R. Sullivan
/s/ Michael A. Todman Director November 7, 2007
-----------------------------
Michael A. Todman
/s/ Raymond G. Viault Director November 7, 2007
-----------------------------
Raymond G. Viault
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 February
4, 2008.
NEWELL RUBBERMAID INC.
2008 DEFERRED COMPENSATION PLAN
By: /s/ Thomas J. Nohl
------------------------------
Thomas J. Nohl
Benefit Plans Administrative
Committee
INDEX TO EXHIBITS
-----------------
Exhibit
Number Exhibit
------- -------
4.1 Restated Certificate of Incorporation of Newell
Rubbermaid Inc., as amended as of April 5, 2001
(incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the
quarterly period March 31, 2001).
4.2 By-Laws of Newell Rubbermaid Inc., as amended
(incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2007).
5 Opinion of Schiff Hardin LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Schiff Hardin LLP (contained in the Opinion
filed as Exhibit 5).
24 Power of Attorney (contained on the signature pages
hereto).
EXHIBIT 5
---------
February 6, 2008
Securities and Exchange Commission
100 F. Street, NE
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 $50,000,000 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. 2008
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.
The foregoing opinion is limited to the General Corporation Law
of the State of Delaware, which includes those statutory provisions
and all applicable provisions of the Delaware Constitution and the
reported judicial decisions interpreting such laws, and we express no
opinions with respect to the laws of any other jurisdiction. The
opinion expressed in this opinion letter is as of the date of this
opinion letter only and as to laws covered hereby only as they are in
effect on that date, and we assume no obligation to update or
supplement such opinion to reflect any facts or circumstances that may
come to our attention after that date or any changes in law that may
occur or become effective after that date.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
SCHIFF HARDIN LLP
By: /s/ Lauralyn G. Bengel
-----------------------
Lauralyn G. Bengel
EXHIBIT 23.1
------------
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. 2008
Deferred Compensation Plan of our reports dated February 27, 2007,
with respect to the consolidated financial statements and schedule
of Newell Rubbermaid Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 2006, Newell Rubbermaid Inc.'s
management's assessment of the effectiveness of internal control
over financial reporting, and the effectiveness of internal control
over financial reporting of Newell Rubbermaid Inc. filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Baltimore, Maryland
February 7, 2008
