<PAGE>
As filed with the Securities and Exchange Commission on July 14, 1999.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-3
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 Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Dale L. Matschullat
29 East Stephenson Street Vice President - General Counsel
Freeport, Illinois 61032 6833 Stalter Drive, Suite 101
(815) 235-4171 Rockford, Illinois 61108
(Address, Including Zip Code, and (815) 381-8110
Telephone Number, Including Area Code, of (Name, Address, Including Zip Code,
Registrant's Principal Executive Offices) and Telephone Number, Including
Area Code, of Agent for Service)
--------------------------
Please send copies of all communications to:
Andrew A. Kling
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
(312) 258-5500
--------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
<PAGE>
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Each Class of Amount to Maximum Aggregate
Securities to be be Aggregate Offering Amount of
Registered Registered Price Per Unit Price(1) Registration Fee
---------- ---------- -------------- ---------- ----------------
<S> <C> <C> <C> <C>
Debt Securities (2)
Preferred Stock (2)
Common Stock, Par Value (2)
$1.00 per share, and
related
Common Stock Purchase
Rights(3)
Total.......................................................................... $750,000,000(4) $208,500
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(2) Not applicable pursuant to Form S-3, General Instruction II.D.
(3) The value attributable to the Common Stock Purchase Rights is reflected
in the value attributable to the Common Stock.
(4) Does not include an additional $29,500,000 of securities previously
registered by the Registrant under its Registration Statement on Form
S-3 (File No. 33-64225) which is being carried forward pursuant to Rule
429 under the Securities Act of 1933. A registration fee of $172,413.79
was previously paid in connection with Registration Statement File No.
33-64225 of which $10,172.41 related to $29,500,000 of these
securities. In the event that any such previously registered securities
are offered and sold prior to the effective date of this Registration
Statement, the amount of such securities so offered and sold will not
be included in a prospectus hereunder.
<PAGE>
--------------------------
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
--------------------------
PURSUANT TO RULE 429 OF THE RULES AND REGULATIONS OF THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS INCLUDED
IN THIS REGISTRATION STATEMENT ALSO RELATES TO $29,500,000 OF SECURITIES
PREVIOUSLY REGISTERED UNDER THE REGISTRANT'S REGISTRATION STATEMENT ON FORM
S-3 (FILE NO. 33-64225). THIS REGISTRATION STATEMENT ALSO CONSTITUTES
POST-EFFECTIVE AMENDMENT NO. 1 WITH RESPECT TO THE REGISTRANT'S REGISTRATION
STATEMENT ON FORM S-3 (FILE NO. 33-64225).
<PAGE>
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
$779,500,000
NEWELL RUBBERMAID INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
---------------------
THE COMPANY: Newell Rubbermaid Inc. Our principal executive office is
located at 29 East Stephenson Street, Newell Center, Freeport, Illinois 61032
and our telephone number is (815) 235-4171.
TERMS: We plan to offer and sell notes with various terms. In summary:
<TABLE>
<S> <C>
- - We will offer notes generally described in - We will specify the terms and conditions of
this prospectus supplement from time to time. each issue of notes, which may be different
from terms described in this prospectus
supplement, in a pricing supplement.
- - The notes will be senior unsecured debt - The notes will have stated maturities of nine
securities of Newell. months or more from the date they are
originally issued.
- - We will pay amounts due on the notes in U.S. - The notes may bear interest at fixed or
dollars or any other consideration described floating rates or not at all. If the notes bear
in the applicable pricing supplement. interest at a floating rate, the floating
rate may be based on one or more indices or
formulas plus or minus a spread or multiplied
by a spread multiplier.
- - We will specify in the pricing supplement - The notes will be offered in minimum
whether the notes can be redeemed or repaid denominations of $1,000.
before their maturity and whether they are
subject to mandatory redemption or at the
option of Newell or the holder of the notes.
</TABLE>
INVESTING IN THE NOTES INVOLVES CERTAIN RISKS.
SEE "RISK FACTORS" ON PAGE S-3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement, the accompanying prospectus or any pricing supplement is
truthful or complete. Any representation to the contrary is a criminal offense.
<TABLE>
<CAPTION>
PUBLIC AGENT'S PROCEEDS, BEFORE
OFFERING DISCOUNTS EXPENSES,
PRICE AND COMMISSIONS TO NEWELL
-------------------- ---------------- ------------------------
<S> <C> <C> <C>
Per note............................................. 100% .125%--.750% 99.875%--99.250%
Total (1)............................................ U.S. $779,500,000 -- --
</TABLE>
- ------------------------
(1) Or the equivalent in one or more other currencies or composite currencies.
We may sell notes to the agents referred to below as principal for resale at
varying or fixed offering prices or through the agents as agents, using their
reasonable efforts on our behalf. We may also sell notes without the assistance
of the agents.
If we sell other securities referred to in the accompanying prospectus, the
aggregate initial offering price of notes that we may offer and sell under this
prospectus supplement may be reduced.
------------------------
BANC ONE CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
MORGAN STANLEY DEAN WITTER
----------------
The date of this prospectus supplement is , 1999.
<PAGE>
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the attached prospectus contain information
about Newell and about the notes. They also refer to information contained in
other documents filed by Newell with the Securities and Exchange Commission.
References to this prospectus supplement or the prospectus also means the
information contained in such other documents. To the extent that information
appearing in a later filed document is inconsistent with prior information, the
later statement will control. If this prospectus supplement is inconsistent with
the prospectus, rely on this prospectus supplement.
You should rely only on the information contained or incorporated by
reference in this prospectus supplement, the accompanying prospectus and any
pricing supplement. We have not authorized any other person to provide you with
different or additional information. If anyone provides you with different or
additional information, you should not rely on it. We are not making an offer to
sell these securities and are not soliciting an offer to buy these securities in
any jurisdiction where the offer or sale of these securities is not permitted.
You should not assume that the information contained or incorporated by
reference in this prospectus supplement, the accompanying prospectus and any
pricing supplement is accurate as of any date other than the date on the front
cover of the applicable document.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PROSPECTUS SUPPLEMENT PAGE
- ----------------------------------------------------------------------------------------------------------- ---------
<S> <C>
Risk Factors............................................................................................... S-3
Description of the Notes................................................................................... S-4
United States Federal Income Taxation...................................................................... S-23
Plan of Distribution....................................................................................... S-30
Validity of the Notes...................................................................................... S-31
<CAPTION>
PROSPECTUS PAGE
- ----------------------------------------------------------------------------------------------------------- ---------
<S> <C>
Newell Rubbermaid Inc...................................................................................... 2
Where You Can Find More Information........................................................................ 2
Use of Proceeds............................................................................................ 3
Ratio of Earnings to Fixed Charges......................................................................... 3
Description of Debt Securities............................................................................. 4
Particular Terms of the Senior Debt Securities............................................................. 11
Particular Terms of the Subordinated Debt Securities....................................................... 15
Description of Capital Stock............................................................................... 16
Plan of Distribution....................................................................................... 18
Legal Opinion.............................................................................................. 19
Experts.................................................................................................... 19
</TABLE>
References in this prospectus supplement to "Newell," "we," "us" and "our"
are to Newell Rubbermaid Inc.
S-2
<PAGE>
RISK FACTORS
Your investment in the notes involves certain risks. In consultation with
your own financial and legal advisers, you should carefully consider, among
other matters, the following discussion of risks before deciding whether an
investment in the notes is suitable for you. The notes are not an appropriate
investment for you if you are unsophisticated with respect to financial matters
and investments in securities of substantially the same type as the notes.
STRUCTURE RISKS OF NOTES INDEXED TO INTEREST RATES OR OTHER INDICES OR FORMULAS
If you invest in notes indexed to one or more interest rates or other
indices or formulas, there will be significant risks not associated with a
conventional fixed rate or floating rate debt security. These risks include
fluctuation of the indices or formulas and the possibility that you will receive
a lower or no amount of principal, premium or interest and at different times
than you expected. We have no control over a number of matters, including
economic, financial and political events, that are important in determining the
existence, magnitude and longevity of these risks and their results. In
addition, if an index or formula used to determine any amounts payable in
respect of the notes contains a multiplier or leverage factor, the effect of any
change in that index or formula will be magnified. In recent years, values of
certain indices and formulas have been volatile and volatility in those and
other indices and formulas may be expected in the future. However, past
experience is not necessarily indicative of what may occur in the future.
REDEMPTION MAY ADVERSELY AFFECT YOUR RETURN ON THE NOTES
If your notes are redeemable at our option or are otherwise subject to
mandatory redemption, we may, in the case of optional redemption, or must, in
the case of mandatory redemption, choose to redeem your notes at times when
prevailing interest rates may be relatively low. Accordingly, you may not be
able to reinvest the redemption proceeds in a comparable security at an
effective interest rate as high as that of the notes.
THERE MAY BE AN UNCERTAIN TRADING MARKET FOR YOUR NOTES; MANY FACTORS MAY AFFECT
THE TRADING VALUE OF YOUR NOTES
We cannot assure you a trading market for your notes will ever develop or be
maintained. Many factors independent of our creditworthiness may affect the
trading market of your notes. These factors include:
- the complexity and volatility of the index or formula applicable to the
notes,
- the method of calculating the principal, premium and interest in respect
of the notes,
- the time remaining to the maturity of the notes,
- the outstanding amount of the notes,
- the redemption features of the notes,
- the amount of other debt securities linked to the index or formula
applicable to the notes, and
- the level, direction and volatility of market interest rates generally.
In addition, because some notes may be designed for specific investment
objectives or strategies, these notes will have a more limited trading market
and experience more price volatility. There may be a limited number of buyers
when you decide to sell your notes. This may affect the price you receive for
your notes or your ability to sell your notes at all. You should not purchase
notes unless you understand and know you can bear the related investment risks.
S-3
<PAGE>
OUR CREDIT RATINGS MAY NOT REFLECT ALL RISKS OF AN INVESTMENT IN THE NOTES
Our credit ratings are an assessment of our ability to pay our obligations.
Consequently, real or anticipated changes in our credit ratings will generally
affect the market value of your notes. Our credit ratings, however, may not
reflect the potential impact of risks related to structure, market or other
factors discussed above on the value of your notes.
DESCRIPTION OF THE NOTES
The notes will be issued as a series of debt securities under a senior
indenture, dated as of November 1, 1995, (the "indenture"), between Newell and
The Chase Manhattan Bank, as trustee (as used in this prospectus supplement, the
"trustee"). The indenture is subject to, and governed by, the Trust Indenture
Act of 1939. The term "debt securities," as used in this prospectus supplement,
refers to all debt securities issued and issuable from time to time under the
indenture and includes the notes. The debt securities and the trustee are more
fully described in the accompanying prospectus in the section entitled
"Description of Debt Securities." The following summary of certain provisions of
the notes and of the indenture is not complete and is qualified in its entirety
by reference to the indenture, a copy of which is incorporated as an exhibit to
the registration statement of which this prospectus supplement and the
accompanying prospectus are a part. Capitalized terms used but not defined in
this prospectus supplement or in the related prospectus have the meanings given
to them in the indenture or the notes, as the case may be.
The following description of notes will apply unless otherwise specified in
an applicable pricing supplement.
TERMS OF THE NOTES
All debt securities, including the notes, issued and to be issued under the
indenture will be unsecured general obligations of Newell and will rank equally
with all other unsecured and unsubordinated indebtedness of Newell from time to
time outstanding. Because Newell is a holding company, the right of Newell, and
its creditors, including the holders of the notes, to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of Newell itself
as a creditor of the subsidiary may be recognized.
The indenture does not limit the aggregate principal amount of debt
securities that Newell may issue. Newell may issue debt securities from time to
time as a single series or in two or more separate series up to the aggregate
principal amount from time to time authorized by Newell for each series. We may,
from time to time, without the consent of the holders of the notes, provide for
the issuance of notes or other debt securities under the indenture in addition
to the aggregate principal amount of notes offered by this prospectus
supplement. Substantially all of Newell's consolidated accounts payable
represent obligations of Newell's subsidiaries, and as of March 31, 1999, the
aggregate principal amount of money borrowed by Newell's consolidated
subsidiaries equaled approximately $231.2 million (the current portion of which
was approximately $75.9 million). The aggregate principal amount of notes which
may be offered by this prospectus supplement may be reduced by the issuance by
Newell of other securities under the registration statement of which this
prospectus supplement and the accompanying prospectus are a part.
The notes will be offered on a continuing basis and will mature on a day
nine months or more from the date of issue, as selected by the purchaser and
agreed to by Newell. Interest-bearing notes will either be Fixed Rate Notes or
Floating Rate Notes, as specified in the applicable pricing supplement. Notes
may be issued at significant discounts from their principal amount payable at
stated maturity, or on any date before the date on which the principal or an
installment of principal of a note becomes due and payable, whether by the
declaration of acceleration, call for redemption at the option of
S-4
<PAGE>
Newell or repayment at the option of the holder, if applicable, or otherwise
(each such date, a "Maturity"). Some notes may not bear interest.
Unless otherwise indicated in a note and in the applicable pricing
supplement, the notes will be denominated in United States dollars and payments
of principal of, and premium, if any, and interest on, the notes will be made in
United States dollars.
Interest rates offered by Newell with respect to the notes may differ
depending upon, among other factors, the aggregate principal amount of notes
purchased in any single transaction. Notes with different variable terms other
than interest rates may also be offered concurrently to different investors.
Interest rates, interest rate formulas and other variable terms of the notes
are subject to change by Newell from time to time, but no such change will
affect any note already issued or as to which Newell has accepted an offer to
purchase.
Each note will be issued in fully registered book-entry form or certificated
form, in minimum denominations of $1,000 and integral multiples of $1,000,
unless otherwise specified in the applicable pricing supplement. Notes in book-
entry form may be transferred or exchanged only through a participating member
of The Depository Trust Company (or DTC), or such other depository as is
identified in an applicable pricing supplement (the "Depository"). See "Notes in
Book-Entry Form". Registration of transfer of notes in certificated form will be
made at the Corporate Trust Office of the trustee. No service charge will be
made for any registration of transfer or exchange of notes, but Newell may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with any transfer or exchange, other than exchanges
pursuant to the indenture not involving any transfer.
Payments of principal of, and premium and interest, if any, on notes in
book-entry form will be made by Newell through the trustee to the Depository or
its nominee. See "Notes in Book-Entry Form".
In the case of notes in certificated form, payment of principal or premium,
if any, at the Maturity of each note will be made in immediately available funds
upon presentation of the note and, in the case of any repayment on an Optional
Repayment Date, upon submission of a duly completed election form if and as
required by the provisions described below at the Corporate Trust Office of the
trustee in the Borough of Manhattan, The City of New York, or at any other place
as Newell may designate. Payment of interest due at Maturity will be made to the
person to whom payment of the principal of the note in certificated form will be
made. Payment of interest due on notes in certificated form other than at
Maturity will be made at the Corporate Trust Office of the trustee or, at the
option of Newell, may be made by check mailed to the address of the person
entitled to receive payment as the address shall appear in the security register
for the senior debt securities. Notwithstanding the immediately preceding
sentence, a holder of $10,000,000 or more in aggregate principal amount of notes
in certificated form, whether having identical or different terms and
provisions, having the same Interest Payment Date will, at the option of Newell,
be entitled to receive interest payments, other than at Maturity, by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the trustee not less than 15 days
prior to the applicable Interest Payment Date. Any wire instructions received by
the trustee shall remain in effect until revoked by the holder.
TRANSACTION AMOUNT
Interest rates offered by Newell with respect to the notes may differ
depending upon, among other things, the aggregate principal amount of notes
purchased in any transaction. Newell may offer notes with similar variable terms
but different interest rates concurrently at any time. Newell may also
concurrently offer notes having different variable terms as are described in
this prospectus supplement or in any pricing supplement to different investors.
S-5
<PAGE>
REDEMPTION AT THE OPTION OF NEWELL
Unless we otherwise indicate in the applicable pricing supplement, the notes
will not be subject to any sinking fund. The notes will be redeemable at the
option of Newell prior to their stated maturity only if so specified in the
applicable notes and in the applicable pricing supplement. If so indicated in
the applicable pricing supplement, notes will be subject to redemption at the
option of Newell on any date on and after the applicable Initial Redemption Date
specified in the applicable pricing supplement. On and after the Initial
Redemption Date, if any, the related note may be redeemed at any time in whole
or from time to time in part at the option of Newell at the applicable
Redemption Price together with accrued and unpaid interest on the applicable
note payable to the Redemption Date, on notice given, unless otherwise specified
in the applicable pricing supplement, not more than 60 nor less than 30 days
prior to the Redemption Date. The notes will be redeemed in increments of
$1,000, provided that any remaining principal amount will be an authorized
denomination of the applicable note. Unless otherwise specified in the
applicable pricing supplement, "Redemption Price" with respect to a note will
initially mean a percentage, the Initial Redemption Percentage, of the principal
amount of the note to be redeemed specified in the applicable pricing supplement
and shall decline at each anniversary of the Initial Redemption Date by a
percentage, the Annual Redemption Percentage Reduction, if any, specified in the
applicable pricing supplement, of the principal amount to be redeemed until the
Redemption Price is 100% of the unpaid principal amount.
REPAYMENT AT THE OPTION OF THE HOLDER
If so indicated in an applicable pricing supplement, notes will be repayable
by Newell prior to their stated maturity in whole or in part at the option of
the holders of the notes on their respective Optional Repayment Dates specified
in the applicable pricing supplement. If no Optional Repayment Date is indicated
with respect to a note, it will not be repayable at the option of the holder
prior to its stated maturity. Any repayment in part will be in an amount equal
to $1,000 or integral multiples of $1,000, provided that any remaining principal
amount will be an authorized denomination of the applicable note. The repurchase
price for any note so repurchased will be 100% of the unpaid principal amount,
together with accrued but unpaid interest on the applicable note payable to the
date of repayment.
For a note to be repaid, the trustee must receive at its office in the
Borough of Manhattan, the City of New York at least 30, but not more than 60,
calendar days before the date of repayment:
- for certificated notes, the note and a completed "Option to Elect
Repayment" form;
- for book-entry notes, instructions to similar effect from the applicable
beneficial owner of the notes to the Depository and forwarded by the
Depository.
Notices of elections from a holder to exercise the repayment option must be
received by the trustee by 5:00 p.m., New York City time, on the last day for
giving notice. Exercise of the repayment option by the holder of a note will be
irrevocable.
Only the Depository may exercise any repayment option in respect of global
securities representing notes in book-entry form. Accordingly, beneficial owners
of global securities with such a repayment option that desire to have all or any
portion of the notes in book-entry form represented by global securities repaid
must instruct the participant through which they own their interest to direct
the Depository to exercise the repayment option on their behalf by forwarding
the repayment instructions to the trustee as discussed above. In order to ensure
that the instructions are received by the trustee on a particular day, the
applicable beneficial owner must so instruct the participant through which it
owns its interest before that participant's deadline for accepting instructions
for that day. Different firms may have different deadlines for accepting
instructions from their customers. Accordingly, beneficial owners of notes in
book-entry form should consult the participants through which they own their
interest for
S-6
<PAGE>
the respective deadlines. All instructions given to participants from beneficial
owners of notes in book-entry form relating to the option to elect repayment
will be irrevocable.
If applicable, Newell will comply with the requirements of Section 14(e) of
the Securities Exchange Act of 1934 and the rules promulgated thereunder and any
other securities laws or regulations in connection with any repayment at the
option of the holder.
Newell may at any time purchase notes at any price or prices in the open
market or otherwise. Notes so purchased by Newell may, at the discretion of
Newell, be held, resold or surrendered to the trustee for cancellation.
INTEREST
Unless otherwise specified in the applicable pricing supplement, each note
will bear interest from the date of issue at the rate per annum or, in the case
of a Floating Rate Note, pursuant to the interest rate formula stated in the
applicable note and as specified in the applicable pricing supplement until the
principal of the note is paid or made available for payment. Interest will be
payable in arrears on each Interest Payment Date specified in the applicable
pricing supplement on which an installment of interest is due and payable and at
Maturity. The first payment of interest on any note originally issued between a
Regular Record Date and the related Interest Payment Date will be made on the
Interest Payment Date immediately following the next succeeding Regular Record
Date to the registered holder on the next succeeding Regular Record Date. The
"Regular Record Date" will be the fifteenth calendar day, whether or not a
Business Day, immediately preceding the related Interest Payment Date.
FIXED RATE NOTES
Unless otherwise specified in an applicable pricing supplement, each Fixed
Rate Note will bear interest from, and including, the date of issue, at the rate
per annum stated on the face of the note until the principal amount of the note
is paid or made available for payment. Interest payments on Fixed Rate Notes
will equal the amount of interest accrued from and including the immediately
preceding Interest Payment Date in respect of which interest has been paid or
from and including the date of issue, if no interest has been paid with respect
to the applicable Fixed Rate Notes, to, but excluding, the related Interest
Payment Date or Maturity Date, as the case may be. Unless otherwise specified in
the applicable pricing supplement, interest on Fixed Rate Notes will be computed
on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified in the applicable pricing supplement, interest on
Fixed Rate Notes will be payable semiannually on January 1 and July 1 of each
year and on the Maturity Date. If any Interest Payment Date or the Maturity of a
Fixed Rate Note falls on a day that is not a Business Day, the related payment
of principal, premium, if any, or interest will be made on the next succeeding
Business Day as if made on the date the applicable payment was due, and no
interest will accrue on the amount so payable for the period from and after such
Interest Payment Date or Maturity Date, as the case may be.
FLOATING RATE NOTES
Interest on Floating Rate Notes will be determined by reference to the
applicable Interest Rate Basis or Interest Rate Bases, which may be one or more
of:
- the CD Rate,
- the CMT Rate,
- the Commercial Paper Rate,
S-7
<PAGE>
- the Eleventh District Cost of Funds Rate,
- the Federal Funds Rate,
- LIBOR,
- the Prime Rate,
- the Treasury Rate, or
- any other Interest Rate Basis or interest rate formula that is specified
in the applicable pricing supplement.
A Floating Rate Note may bear interest with respect to one or more Interest
Rate Bases.
Floating Rate Notes will be issued as described below. Each applicable
pricing supplement will specify the terms of the Floating Rate Note being
delivered, which may include whether the Floating Rate Note is a "Regular
Floating Rate Note", an "Inverse Floating Rate Note" or a "Floating Rate/ Fixed
Rate Note;" the Fixed Rate Commencement Date, if applicable, the Fixed Interest
Rate, if applicable, the Interest Rate Basis or Bases, Initial Interest Rate,
Interest Reset Dates, Interest Payment Dates, Index Maturity, Maximum Interest
Rate and Minimum Interest Rate, if any, and the Spread and/or Spread Multiplier,
if any. If one or more of the specified Interest Rate Bases is LIBOR, the
applicable pricing supplement will also specify the Index Maturity and the
Designated LIBOR Page. If one or more of the specified Interest Rate Bases is
the CMT Rate, the applicable pricing supplement will also specify the Designated
CMT Telerate Page and Designated CMT Maturity Index, as described below.
The interest rate borne by the Floating Rate Notes will be determined as
follows:
(a) Unless a Floating Rate note is designated as a Floating Rate/Fixed Rate
Note, an Inverse Floating Rate Note or as having an Addendum attached or
as having "Other Provisions" apply relating to a different interest rate
formula, it will be a "Regular Floating Rate Note" and, except as
described below or in an applicable pricing supplement, will bear
interest at the rate determined by reference to the applicable Interest
Rate Basis or Bases (1) plus or minus the applicable Spread, if any,
and/or (2) multiplied by the applicable Spread Multiplier, if any.
Commencing on the first Interest Reset Date, the rate at which interest
on the Regular Floating Rate Note will be payable will be reset as of
each Interest Reset Date; provided, however, that the interest rate in
effect for the period from the date of issue to the first Interest Reset
Date will be the Initial Interest Rate.
(b) If a Floating Rate Note is designated as a "Floating Rate/Fixed Rate
Note," it will, except as described below or in the applicable pricing
supplement, bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (1) plus or minus the applicable
Spread, if any, and/or (2) multiplied by the applicable Spread
Multiplier, if any. Commencing on the first Interest Reset Date, the rate
at which interest on the applicable Floating Rate/ Fixed Rate Note will
be payable will be reset as of each Interest Reset Date; provided,
however, that (1) the interest rate in effect for the period from the
date of issue to the first Interest Reset Date will be the Initial
Interest Rate, and (2) the interest rate in effect commencing on, and
including, the Fixed Rate Commencement Date to Maturity will be the Fixed
Interest Rate, if the rate is specified in the applicable pricing
supplement, or if no Fixed Interest Rate is specified, the interest rate
in effect on the Floating Rate/Fixed Rate Note on the day immediately
preceding the Fixed Rate Commencement Date.
(c) If a Floating Rate Note is designated as an "Inverse Floating Rate
Note", then, except as described below, it will bear interest equal to
the Fixed Interest Rate specified in the related pricing supplement minus
the rate determined by reference to the applicable Interest Rate Basis or
Bases (1) plus or minus the applicable Spread, if any, and/or (2)
multiplied by the
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<PAGE>
applicable Spread Multiplier, if any; provided, however, that unless
otherwise specified in the applicable pricing supplement, the interest
rate on the applicable Inverse Floating Rate Note will not be less than
zero percent. Commencing on the first Interest Reset Date, the rate at
which interest on the applicable Inverse Floating Rate Note is payable
will be reset as of each Interest Reset Date; provided, however, that the
interest rate in effect for the period from the date of issue to the
first Interest Reset Date will be the Initial Interest Rate.
Notwithstanding the foregoing, if a Floating Rate Note is designated as
having an Addendum attached or as having "Other Provisions" apply as specified
on the face of the applicable note, it will bear interest in accordance with the
terms described in the Addendum or specified under "Other Provisions" and the
applicable pricing supplement.
Each Interest Rate Basis shall be the rate determined in accordance with the
applicable provisions below. Except as set forth above, the interest rate in
effect on each day will be (a) if the day is an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the applicable Interest Reset Date or (b) if the day is not an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the applicable Interest Reset Date.
The "Spread" is the number of basis points to be added to or subtracted from
the related Interest Rate Basis or Bases applicable to a Floating Rate Note. The
"Spread Multiplier" is the percentage of the related Interest Rate Basis or
Bases applicable to a Floating Rate Note by which the Interest Rate Basis or
Bases will be multiplied to determine the applicable interest rate on the
applicable Floating Rate Note. The "Index Maturity" is the period to maturity of
the instrument or obligation with respect to which the Interest Rate Basis or
Bases will be calculated.
The applicable pricing supplement will specify each date (an "Interest Reset
Date") on which the interest rate on the related Floating Rate Note will be
reset. Unless otherwise specified in the applicable pricing supplement, the
Interest Reset Date will be, in the case of Floating Rate Notes which reset:
- daily, each Business Day;
- weekly, the Wednesday of each week (with the exception of weekly reset
Floating Rate Notes as to which the Treasury Rate is an applicable
Interest Rate Basis, which will reset the Tuesday of each week, except as
described below);
- monthly, the third Wednesday of each month (with the exception of monthly
reset Floating Rate Notes as to which the Eleventh District Cost of Funds
Rate is an applicable Interest Rate Basis, which will reset on the first
calendar day of the month);
- quarterly, the third Wednesday of March, June, September and December of
each year;
- semiannually, the third Wednesday of the two months specified in the
applicable pricing supplement; and
- annually, the third Wednesday of the month specified in the applicable
pricing supplement;
provided, however, that with respect to Floating Rate/Fixed Rate Notes, the rate
of interest will not reset after the applicable Fixed Rate Commencement Date.
If any Interest Reset Date for any Floating Rate Note would otherwise be a
day that is not a Business Day, the applicable Interest Reset Date will be
postponed to the next succeeding day that is a Business Day, except that in the
case of a Floating Rate Note as to which LIBOR is an applicable Interest Rate
Basis, if the Business Day falls in the next succeeding calendar month, then the
Interest Reset Date will be the immediately preceding Business Day. In addition,
in the case of a Floating Rate Note for which the Treasury Rate is an applicable
Interest Rate Basis and the Interest Determination
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Date would otherwise fall on an Interest Reset Date, then the applicable
Interest Reset Date will be postponed to the next succeeding Business Day.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
provided, however, that, with respect to notes as to which LIBOR is an
applicable Interest Rate Basis, the day is also a London Business Day. "London
Business Day" means a day on which commercial banks are open for business in
London.
A Floating Rate Note may also have either or both of the following: (i) a
maximum numerical limitation, or ceiling, on the rate at which interest may
accrue during any interest period (a "Maximum Interest Rate"), and (ii) a
minimum numerical limitation, or floor, on the rate at which interest may accrue
during any period (a "Minimum Interest Rate"). The indenture is, and any notes
issued under the indenture will be, governed by and construed in accordance with
the laws of the State of New York. Under present New York law, the maximum rate
of interest is 25% per annum on a simple interest basis. This limit may not
apply to securities in which $2,500,000 or more has been invested. While Newell
believes that New York law would be given effect by a state or federal court
sitting outside of New York, state laws frequently regulate the amount of
interest that may be charged to and paid by a borrower (including, in some
cases, corporate borrowers). Prospective investors should consult their personal
advisors with respect to the applicability of such laws. Newell has agreed for
the benefit of the beneficial owners of the notes, to the extent permitted by
law, not to claim voluntarily the benefits of any laws concerning usurious rates
of interest against a beneficial owner of the notes.
Each applicable pricing supplement will specify the dates on which interest
will be payable (each an "Interest Payment Date"). Each Floating Rate Note will
bear interest from the date of issue at the rates specified in the applicable
Floating Rate Note until the principal of the applicable note is paid or
otherwise made available for payment. Unless otherwise specified in the
applicable pricing supplement and, except as provided below, interest will be
payable in the case of Floating Rate Notes which reset:
- daily, weekly or monthly, the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year, as
specified in the applicable pricing supplement;
- quarterly, the third Wednesday of March, June, September and December of
each year;
- semiannually, the third Wednesday of the two months of each year specified
in the applicable pricing supplement;
- annually, the third Wednesday of the month of each year specified in the
applicable pricing supplement; and
- at Maturity.
If any Interest Payment Date for any Floating Rate Note, other than an
Interest Payment Date at Maturity, would otherwise be a day that is not a
Business Day, the Interest Payment Date will be postponed to the next succeeding
day that is a Business Day except that in the case of a Floating Rate Note as to
which LIBOR is an applicable Interest Rate Basis, if the Business Day falls in
the next succeeding calendar month, the applicable Interest Payment Date will be
the immediately preceding Business Day. If the Maturity of a Floating Rate Note
falls on a day that is not a Business Day, the payment of principal, premium, if
any, and interest will be made on the next succeeding Business Day as if made on
the date such payment was due, and no interest on such payment will accrue for
the period from and after the Maturity to the date of payment on the next
succeeding Business Day.
All percentages resulting from any calculation on Floating Rate Notes will
be rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards. For example,
9.876545% or .09876545 would be rounded to 9.87655% or .0987655.
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<PAGE>
All dollar amounts used in or resulting from such calculation on Floating Rate
Notes will be rounded to the nearest cent with one-half cent being rounded
upward.
Interest payments on Floating Rate Notes will equal the amount of interest
accrued from and including the immediately preceding Interest Payment Date in
respect of which interest has been paid or from and including the date of issue,
if no interest has been paid with respect to the applicable Floating Rate Notes,
to but excluding the related Interest Payment Date or Maturity.
With respect to each Floating Rate Note, accrued interest is calculated by
multiplying its face amount by an accrued interest factor. The accrued interest
factor is computed by adding the interest factor calculated for each day in the
period for which accrued interest is being calculated. Unless otherwise
specified in the applicable pricing supplement, the interest factor for each day
will be computed by dividing the interest rate applicable to each day by 360, in
the case of notes for which the Interest Rate Basis is the CD Rate, the
Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the Federal
Funds Rate, LIBOR or the Prime Rate, or by the actual number of days in the year
in the case of notes for which the Interest Rate Basis is the CMT Rate or the
Treasury Rate. Unless otherwise specified in the applicable pricing supplement,
the interest factor for notes for which the interest rate is calculated with
reference to two or more Interest Rate Bases will be calculated in each period
in the same manner as if only one of the applicable Interest Rate Bases applied.
The interest rate applicable to each interest reset period commencing on the
Interest Reset Date with respect to such interest reset period will be the rate
determined as of the applicable "Interest Determination Date."
Unless otherwise specified in the applicable pricing supplement, the
Interest Determination Date with respect to:
- the CD Rate, the CMT Rate and the Commercial Paper Rate will be the second
Business Day preceding each Interest Reset Date for the related note;
- the Federal Funds Rate and the Prime Rate will be the Business Day
immediately preceding each Interest Reset Date;
- the Eleventh District Cost of Funds Rate will be the last working day of
the month immediately preceding each Interest Reset Date on which the
Federal Home Loan Bank of San Francisco publishes the Index;
- LIBOR will be the second London Business Day preceding each Interest Reset
Date; and
- the Treasury Rate will be the day in the week in which the related
Interest Reset Date falls on which day Treasury Bills are normally
auctioned (Treasury Bills are normally sold at auction on Monday of each
week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that the auction may be
held on the preceding Friday); provided, however, that if an auction is
held on the Friday of the week preceding the related Interest Reset Date,
the related Interest Determination Date will be the preceding Friday; and
provided, further, that if an auction falls on any Interest Reset Date,
then the related Interest Reset Date will instead be the first Business
Day following the auction.
Unless otherwise specified in the applicable pricing supplement, the
Interest Determination Date pertaining to a Floating Rate Note the interest rate
of which is determined with reference to two or more Interest Rate Bases will be
the latest Business Day which is at least two Business Days prior to the
applicable Interest Reset Date for the applicable Floating Rate Note on which
each Interest Reset Basis is determinable. Each Interest Rate Basis will be
determined on the Interest Determination Date, and the applicable interest rate
will take effect on the related Interest Reset Date.
Unless otherwise provided in the applicable pricing supplement, The Chase
Manhattan Bank will be the Calculation Agent. Upon the request of the holder of
any Floating Rate Note, the Calculation
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Agent will provide the interest rate then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next Interest Reset Date with respect to that Floating Rate Note. Unless
otherwise specified in the applicable pricing supplement, the Calculation Date,
if applicable, pertaining to any Interest Determination Date will be the earlier
of (a) the tenth calendar day after the applicable Interest Determination Date,
or, if the tenth calendar day is not a Business Day, the next succeeding
Business Day or (b) the Business Day preceding the applicable Interest Payment
Date or Maturity, as the case may be.
Unless otherwise specified in the applicable pricing supplement, the
Calculation Agent will determine each Interest Rate Basis in accordance with the
following provisions:
CD RATE. CD Rate Notes will bear interest at the rates (calculated with
reference to the CD Rate and the Spread and/or Spread Multiplier, if any)
specified in the applicable CD Rate Notes and in any applicable pricing
supplement.
"CD Rate" means, with respect to any Interest Determination Date relating to
a CD Rate Note or any Floating Rate Note for which the interest rate is
determined with reference to the CD Rate (a "CD Rate Interest Determination
Date"), the rate on the applicable Interest Determination Date for negotiable
United States dollar certificates of deposit having the Index Maturity specified
in the applicable pricing supplement as published in H.15(519) (as hereinafter
defined) under the heading "CDs (secondary market)", or, if not published by
3:00 P.M., New York City time, on the related Calculation Date, the rate on the
applicable CD Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity specified in the applicable
pricing supplement as published in H.15 Daily Update (as hereinafter defined),
or other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "CDs (secondary market)". If the applicable
rate is not yet published in either H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the CD Rate on the applicable CD Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New York
City time, on the applicable CD Rate Interest Determination Date, of three
leading non-bank dealers in negotiable United States dollar certificates of
deposit in The City of New York selected by the Calculation Agent for negotiable
United States dollar certificates of deposit of major United States money center
banks for negotiable certificates of deposit with a remaining maturity closest
to the Index Maturity specified in the applicable pricing supplement in an
amount that is representative for a single transaction in that market at that
time; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the CD Rate with respect to
the applicable CD Rate Interest Determination Date will be the CD Rate in effect
on the applicable CD Rate Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as the
H.15(519), or any successor publication, published by the Board of Governors of
the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available through
the world-wide-web site of the Board of Governors of the Federal Reserve System
at http://www.bog.frb.fed.us/releases/ h15/update, or any successor site or
publication.
CMT RATE. CMT Rate Notes will bear interest at the rates (calculated with
reference to the CMT Rate and the Spread and/or Spread Multiplier, if any)
specified in the applicable CMT Rate Notes and in any applicable pricing
supplement.
"CMT Rate" means, with respect to any Interest Determination Date relating
to any Floating Rate Note for which the interest rate is determined with
reference to the CMT Rate (a "CMT Rate Interest Determination Date"), the rate
displayed on the Designated CMT Telerate Page under the
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caption" ...Treasury Constant Maturities ...Federal Reserve Board Release H.15.
Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index for:
(a) if the Designated CMT Telerate Page is 7051, the rate on the CMT Rate
Interest Determination Date, and
(b) if the Designated CMT Telerate Page is 7052, the weekly or the monthly
average, as specified in the applicable pricing supplement, for the week
or the month, as applicable, ended immediately preceding the week or the
month, as applicable, in which the related CMT Rate Interest
Determination Date falls.
If the applicable rate is no longer displayed on the relevant page or is not
so displayed by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate for the applicable CMT Rate Interest Determination Date will
be the treasury constant maturity rate for the Designated CMT Maturity Index as
published in the relevant H.15(519).
If the applicable rate is no longer published or is not so published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the applicable CMT Rate Interest Determination Date will be the applicable
treasury constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to the applicable Interest Reset
Date as may then be published by either the Board of Governors of the Federal
Reserve System or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in H.15(519).
If the applicable information is not so provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offered rates as of approximately 3:30 P.M., New York City time, on the
CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers in
The City of New York (which may include any agent or its affiliates) (each, a
"Reference Dealer") selected by the Calculation Agent (from five Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for the most recently issued
direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year.
If the Calculation Agent is unable to obtain three applicable Treasury Note
quotations, the CMT Rate on the applicable CMT Rate Interest Determination Date
will be calculated by the Calculation Agent and will be a yield to maturity
based on the arithmetic mean of the secondary market offered rates as of
approximately 3:30 P.M., New York City time, on the applicable CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from five
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for Treasury Notes
with an original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100 million.
If three or four and not five of the Reference Dealers are quoting as
described above, then the CMT Rate will be based on the arithmetic mean of the
offered rates obtained and neither the highest nor the lowest of the quotes will
be eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as mentioned above, the CMT Rate
determined as of the applicable CMT Rate Interest Determination Date will be the
CMT Rate in effect on the applicable CMT Rate Interest Determination Date. If
two Treasury Notes with an original maturity as
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described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five Reference Dealers quotations for the Treasury Notes with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on Bridge Telerate, Inc. or
any successor service on the page specified in the applicable pricing supplement
or any other page as may replace the specified page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519), or
if no such page is specified in the applicable pricing supplement, page 7052.
"Designated CMT Maturity Index" means the original period to maturity of the
U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified in
the applicable pricing supplement with respect to which the CMT Rate will be
calculated, or if no maturity is specified in the applicable pricing supplement,
two years.
COMMERCIAL PAPER RATE. Commercial Paper Rate Notes will bear interest at
the rates (calculated with reference to the Commercial Paper Rate and the Spread
and/or Spread Multiplier, if any) specified in the applicable Commercial Paper
Rate Notes and in any applicable pricing supplement.
"Commercial Paper Rate" means, with respect to any Interest Determination
Date relating to a Commercial Paper Rate Note or any Floating Rate Note for
which the interest rate is determined with reference to the Commercial Paper
Rate (a "Commercial Paper Rate Interest Determination Date"), the Money Market
Yield on the applicable Interest Determination Date of the rate for commercial
paper having the Index Maturity specified in the applicable pricing supplement
as published in H.15(519) under the caption "Commercial Paper--Nonfinancial" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Commercial Paper Rate Interest Determination
Date for commercial paper having the Index Maturity specified in the applicable
pricing supplement as published in H.15 Daily Update, or another recognized
electronic source used for the purpose of displaying the applicable rate, under
the caption "Commercial Paper-- Nonfinancial". If the applicable rate is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation Date, then
the Commercial Paper Rate on the applicable Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and will be the
Money Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on the applicable Commercial Paper Rate Interest
Determination Date of three leading dealers of United States dollar commercial
paper in The City of New York (which may include any agent and its affiliates)
selected by the Calculation Agent for commercial paper having the Index Maturity
specified in the applicable pricing supplement placed for industrial issuers
whose bond rating is "AA", or the equivalent, from a nationally recognized
statistical rating organization; provided, however, that if the dealers selected
by the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined as of the applicable Commercial Paper Rate
Interest Determination Date will be the Commercial Paper Rate in effect on the
applicable Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated in
accordance with the following formula:
<TABLE>
<C> <C> <S>
D X 360
Money Market Yield = ------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. Eleventh District Cost of Funds Rate
Notes will bear interest at the rates (calculated with reference to the Eleventh
District Cost of Funds Rate and the
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Spread and/or Spread Multiplier, if any) specified in the applicable Eleventh
District Cost of Funds Rate Notes and in any applicable pricing supplement.
"Eleventh District Cost of Funds Rate" means, with respect to any Interest
Determination Date relating to an Eleventh District Cost of Funds Rate Note or
any Floating Rate Note for which the interest rate is determined with reference
to the Eleventh District Cost of Funds Rate (an "Eleventh District Cost of Funds
Rate Interest Determination Date"), the rate equal to the monthly weighted
average cost of funds for the calendar month immediately preceding the month in
which the applicable Eleventh District Cost of Funds Rate Interest Determination
Date falls as set forth under the caption "11th District" on the display on
Bridge Telerate, Inc. or any successor service on page 7058 or any other page as
may replace the specified page on that service ("Telerate Page 7058") as of
11:00 A.M., San Francisco time, on the applicable Eleventh District Cost of
Funds Rate Interest Determination Date. If the applicable rate does not appear
on Telerate Page 7058 on the related Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds on the
applicable Eleventh District Cost of Funds Rate Interest Determination Date will
be the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the Federal Home Loan Bank of San Francisco as the cost of funds for
the calendar month immediately preceding the applicable Eleventh District Cost
of Funds Rate Interest Determination Date. If the Federal Home Loan Bank of San
Francisco fails to announce the Index on or before the applicable Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding the applicable Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate
determined as of the applicable Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect on
the applicable Eleventh District Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. Federal Funds Rate Notes will bear interest at the
rates (calculated with reference to the Federal Funds Rate and the Spread and/or
Spread Multiplier, if any) specified in the applicable Federal Funds Rate Notes
and in any applicable pricing supplement.
"Federal Funds Rate" means, with respect to any Interest Determination Date
relating to a Federal Funds Rate Note or any Floating Rate Note for which the
interest rate is determined with reference to the Federal Funds Rate (a "Federal
Funds Rate Interest Determination Date"), the rate on the applicable Interest
Determination Date for United States dollar federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)", as the rate is
displayed on Bridge Telerate, Inc. or any successor service on page 120 or any
other page as may replace the applicable page on such service ("Telerate Page
120"), or, if the applicable rate does not appear on Telerate Page 120 or is not
so published by 3:00 P.M., New York City time, on the related Calculation Date,
the rate on the applicable Federal Funds Rate Interest Determination Date for
United States dollar federal funds as published in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying the applicable
rate, under the caption "Federal Funds (Effective)". If the applicable rate does
not appear on Telerate Page 120 or is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on the related Calculation Date, then the Federal Funds Rate on the applicable
Federal Funds Rate Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by three
leading brokers of United States dollar federal funds transactions in The City
of New York (which may include any agent or its affiliates) selected by the
Calculation Agent prior to 9:00 A.M., New York City time, on the applicable
Federal Funds Rate Interest Determination Date; provided, however, that if the
brokers selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of the applicable Federal Funds
Rate Interest Determination Date will be the Federal Funds Rate in effect on the
applicable Federal Funds Rate Interest Determination Date.
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LIBOR. LIBOR Notes will bear interest at the rates (calculated with
reference to LIBOR and the Spread and/or Spread Multiplier, if any) specified in
the applicable LIBOR Notes and in any applicable pricing supplement.
"LIBOR" means the rate determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to an Interest Determination Date relating to a LIBOR Note
or any Floating Rate Note for which the interest rate is determined with
reference to LIBOR (a "LIBOR Interest Determination Date"), LIBOR will
be either: (a) if "LIBOR Telerate" is specified in the applicable
pricing supplement or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable pricing supplement as the method for
calculating LIBOR, the rate for deposits in United States dollars having
the Index Maturity specified in the applicable pricing supplement,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date that appears on the Designated LIBOR
Page as of 11:00 A.M., London time, on the applicable LIBOR Interest
Determination Date. If fewer than two offered rates so appear, or no
rate appears, as applicable, LIBOR on the applicable LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below, or (b) if "LIBOR Reuters" is specified
in the applicable pricing supplement, the arithmetic mean of the offered
rates (unless the Designated LIBOR Page by its terms provides only for a
single rate, in which case the single rate will be used) for deposits in
United States dollars having the Index Maturity specified in the
applicable pricing supplement, commencing on the second London Business
Day immediately following that LIBOR Interest Determination Date, that
appear (or, if only a single rate is required, appears) on the
Designated LIBOR Page specified in the applicable pricing supplement as
of 11:00 a.m., London time, on the applicable LIBOR Interest
Determination Date.
(ii) With respect to a LIBOR Interest Determination Date on which fewer than
two offered rates appear, or not rate appears, as the case may be, on
the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of
the four major reference banks (which may includes affiliates of the
agents) in the London interbank market, as selected by the Calculation
Agent, to provide the Calculation Agent with its offered quotation for
deposits in United States dollars for the period of the Index Maturity
specified in the applicable pricing supplement, commencing on the
second London Business Day immediately following the applicable LIBOR
Interest Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on the applicable
LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in United States dollars in
that market at that time. If at least two applicable quotations are
provided, then LIBOR determined on the applicable LIBOR Interest
Determination Date will be the arithmetic mean of the quotations. If
fewer than two quotations are provided, then LIBOR determined on the
applicable LIBOR Interest Determination Date will be the arithmetic
mean of the rates quoted at approximately 11:00 a.m. New York City time
on the applicable LIBOR Interest Determination Date by three major
banks (which may include affiliates of the agents) in The City of New
York selected by the Calculation Agent for loans in United States
dollars to leading European banks, having the Index Maturity specified
designated in the applicable pricing supplement and in a principal
amount that is representative for a single transaction in United States
dollars in that market at that time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined as of the applicable LIBOR Interest
Determination Date will be LIBOR in effect on the applicable LIBOR
Interest Determination Date.
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"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is specified in
the applicable pricing supplement, the display on the Reuter Monitor Money Rates
Service or any successor service on the page specified in the applicable pricing
supplement or any other page as may replace the specified page on that service
for the purpose of displaying the London interbank rates of major banks for
United States dollars, or (b) if "LIBOR Telerate" is designated in the
applicable pricing supplement or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified in the applicable pricing supplement as the method for calculating
LIBOR, the display on Bridge Telerate, Inc. or any successor service on the page
specified in the applicable pricing supplement or any page as may replace the
specified page on that service for the purpose of displaying the London
interbank rates of major banks for United States dollars.
PRIME RATE. Prime Rate Notes will bear interest at the rates (calculated
with reference to the Prime Rate and the Spread and/or Spread Multiplier, if
any) specified in the applicable Prime Rate Notes and any applicable pricing
supplement.
"Prime Rate" means, with respect to any Interest Determination Date relating
to a Prime Rate Note or any Floating Rate Note for which the interest rate is
determined with reference to the Prime Rate (a "Prime Rate Interest
Determination Date"), the rate on the applicable Interest Determination Date as
is published in H.15(519) under the heading "Bank Prime Loan" or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
rate on the applicable Prime Rate Interest Determination Date as published in
H.15 Daily Update, or another recognized electronic source used for the purpose
of displaying the applicable rate, under the caption "Bank Prime Loan". If the
applicable rate is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate will be the arithmetic mean of the rates
of interest publicly announced by each bank that appears on the Reuters Screen
US PRIME 1 Page as each bank's prime rate or base lending rate as of 11:00 A.M.,
New York City time, on the applicable Prime Rate Interest Determination Date. If
fewer than four rates so appear on the Reuters Screen US PRIME 1 Page for the
applicable Prime Rate Interest Determination Date, then the Prime Rate will be
the arithmetic mean of the prime rates or base lending rates quoted on the basis
of the actual number of days in the year divided by a 360-day year as of the
close of business on the applicable Prime Rate Interest Determination Date by
three major banks (which may include affiliates of any agent) in The City of New
York selected by the Calculation Agent; provided, however, that if the banks
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Prime Rate determined as of the applicable Prime Rate Interest Determination
Date will be the Prime Rate in effect on the applicable Prime Rate Interest
Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter Monitor
Money Rates Service or any successor service on the "US PRIME 1" Page or other
page as may replace the US PRIME 1 Page on such service for the purpose of
displaying prime rates or base lending rates of major United States banks.
TREASURY RATE. Treasury Rate Notes will bear interest at the rates
(calculated with reference to the Treasury Rate and the Spread and/or Spread
Multiplier, if any) specified in the applicable Treasury Rate Notes and in any
applicable pricing supplement.
"Treasury Rate" means, with respect to an Interest Determination Date
relating to a Treasury Rate Note or any Floating Rate Note for which the
interest rate is determined by reference to the Treasury Rate (a "Treasury Rate
Interest Determination Date"), the rate from the auction held on the applicable
Treasury Rate Interest Determination Date (the "Auction") of direct obligations
of the United States ("Treasury Bills") having the Index Maturity specified in
the applicable pricing supplement under the caption "INVESTMENT RATE" on the
display on Bridge Telerate, Inc. or any successor service on page 56 or any
other page as may replace page 56 on such service ("Telerate Page
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56") or page 57 or any other page as may replace page 57 on such service
("Telerate Page 57") or, if not so published by 3:00 P.M., New York City time,
on the related Calculation Date, the Bond Equivalent Yield of the rate for the
applicable Treasury Bills as published in H.15 Daily Update, or other recognized
electronic source used for the purpose of displaying the applicable rate, under
the caption "U.S. Government Securities/Treasury Bills/Auction High" or, if not
so published by 3:00 P.M., New York City time, on the related Calculation Date,
the Bond Equivalent Yield of the auction rate of the applicable Treasury Bills
as announced by the United States Department of the Treasury. In the event that
the auction rate of Treasury Bills having the Index Maturity specified in the
applicable pricing supplement is not so announced by the United States
Department of the Treasury, or if the Auction is not held, then the Treasury
Rate will be the Bond Equivalent Yield of the rate on the applicable Treasury
Rate Interest Determination Date of Treasury Bills having the Index Maturity
specified in the applicable pricing supplement as published in H.15(519) under
the caption "U.S. Government Securities/Treasury Bills/Secondary Market" or, if
not yet published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Treasury Rate Interest Determination Date of
the applicable Treasury Bills as published in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying the applicable
rate, under the caption "U.S. Government Securities/Treasury Bills/Secondary
Market". If the applicable rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source, then the Treasury Rate will be
calculated by the Calculation Agent and will be the Bond Equivalent Yield of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on the applicable Treasury Rate Interest Determination
Date, of three primary United States government securities dealers (which may
include any agent or its affiliates) selected by the Calculation Agent, for the
issue of Treasury Bills with a remaining maturity closest to the Index Maturity
specified in the applicable pricing supplement; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of the applicable Treasury Rate
Interest Determination Date will be the Treasury Rate in effect on the
applicable Treasury Rate Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
<TABLE>
<C> <C> <S>
DXN
Bond Equivalent Yield = ------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
OTHER PROVISIONS; ADDENDA
Any provisions with respect to an issue of notes, including the
determination of one or more Interest Rate Bases, the specification of one or
more Interest Rate Bases, the calculation of the interest rate applicable to a
Floating Rate Note, the applicable Interest Payment Dates, the stated maturity
date, any redemption or repayment provisions or any other matter relating to the
applicable notes may be modified by the terms as specified under "Other
Provisions" on the face of the applicable notes or in an Addendum relating to
the applicable notes, if so specified on the face of the applicable notes and in
the applicable pricing supplement.
ORIGINAL ISSUE DISCOUNT NOTES
Newell may issue notes at a price less than 100% of the principal amount
thereof (I.E., par) by more than a percentage equal to the product of 0.25% and
the number of years to Maturity, resulting in the applicable notes being treated
as if they were issued with original issue discount for United
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States federal income tax purposes ("original issue discount notes"). Original
issue discount notes may currently bear no interest or bear interest at a rate
which at the time of issuance is below market rates. Additional considerations
relating to any original issue discount notes will be described in the
applicable pricing supplement.
AMORTIZING NOTES
Newell may from time to time offer notes ("Amortizing Notes") with amount of
principal and interest payable in installments over the term of the notes.
Unless otherwise specified in the applicable pricing supplement, interest on
each Amortizing Note will be computed on the basis of a 360-day year of twelve
30-day months, and payments with respect to Amortizing Notes will be applied
first to interest due and payable on the Amortizing Notes and then to the
reduction of the unpaid principal amount of the applicable Amortizing Notes.
Further information concerning additional terms and conditions of any issue of
Amortizing Notes will be provided in the applicable pricing supplement. A table
setting forth repayment information in respect of each Amortizing Note will be
included in the applicable Amortizing Note and the applicable pricing
supplement.
INDEXED NOTES
Newell may from time to time offer notes ("Indexed Notes") with the amount
of principal or interest payable to be determined with reference to the price or
prices of specified commodities or stocks, to the exchange rate of one or more
designated currencies relative to an indexed currency or to other items, in each
case as specified in the applicable pricing supplement. In certain cases,
holders of Indexed Notes may receive a principal payment on the maturity date
that is greater than or less than the principal amount of such Indexed Notes
depending upon the relative value on the maturity date of the specified indexed
item. Information as to the method for determining the amount of principal and
interest, if any, payable in respect of Indexed Notes, certain historical
information with respect to the specified indexed item and any material tax
considerations associated with an investment in Indexed Notes will be specified
in the applicable pricing supplement.
NOTES IN BOOK-ENTRY FORM
DESCRIPTION OF THE GLOBAL SECURITIES
Upon issuance, all notes in book-entry form having the same date of issue,
Maturity and otherwise having identical terms and provisions will be represented
by one or more fully registered global notes (the "Global Notes"). Each Global
Note will be deposited with, or on behalf of, The Depository Trust Company as
Depository (the "Depository") and registered in the name of the Depository or a
nominee of the Depository. Unless and until it is exchanged in whole or in part
for notes in definitive form, no Global Note may be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any nominee to a successor of the Depository or a nominee of the
successor.
DTC PROCEDURES
The following is based on information furnished by the Depository:
The Depository will act as securities depository for the notes in book-entry
form. The notes in book-entry form will be issued as fully registered securities
registered in the name of Cede & Co. (the Depository's partnership nominee). One
fully registered Global Note will be issued for each issue of notes in
book-entry form, each in the aggregate principal amount of the issue, and will
be deposited with the Depository. If, however, the aggregate principal amount of
any issue exceeds $200,000,000, one Global Note will be issued with respect to
each $200,000,000 of principal amount and an additional Global Note will be
issued with respect to any remaining principal amount of the issue.
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The Depository is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. The Depository holds securities that its participants deposit with the
Depository. The Depository also facilitates the settlement among participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct participants of the Depository include securities brokers and dealers
(including the agent), banks, trust companies, clearing corporations and certain
other organizations. The Depository is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the Depository's system is also available to others such as securities
brokers and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a direct participant, either directly or indirectly.
The rules applicable to the Depository and its participants are on file with the
Securities and Exchange Commission.
Purchases of notes in book-entry form under the Depository's system must be
made by or through direct participants, which will receive a credit for such
notes in book-entry form on the Depository's records. The ownership interest of
each actual purchaser of each note in book-entry form represented by a Global
Note is, in turn, to be recorded on the records of direct participants and
indirect participants. Beneficial owners of notes in book-entry form will not
receive written confirmation from the Depository of their purchase, but
beneficial owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings,
from the direct participants or indirect participants through which the
beneficial owner entered into the transaction. Transfers of ownership interests
in a Global Note representing notes in book-entry form are to be accomplished by
entries made on the books of participants acting on behalf of beneficial owners.
Beneficial owners of a Global Note representing notes in book-entry form will
not receive notes in certificated form representing their ownership interests
therein, except in the event that use of the book-entry system for such notes in
book-entry form is discontinued.
To facilitate subsequent transfers, all Global Notes representing notes in
book-entry form which are deposited with, or on behalf of, the Depository are
registered in the name of the Depository's nominee, Cede & Co. The deposit of
Global Notes with, or on behalf of, the Depository and their registration in the
name of Cede & Co. effect no change in beneficial ownership. The Depository has
no knowledge of the actual beneficial owners of the Global Notes representing
the notes in book-entry form; the Depository's records reflect only the identity
of the direct participants to whose accounts such notes in book-entry form are
credited, which may or may not be the beneficial owners. The participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by the Depository to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners of notes in
book-entry form, will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Neither the Depository nor Cede & Co. will consent or vote with respect to
the Global Notes representing the notes in book-entry form. Under its usual
procedures, the Depository mails an omnibus proxy to Newell as soon as possible
after the applicable record date. The omnibus proxy assigns Cede & Co.'s
consenting or voting rights to those direct participants identified in a listing
attached to the omnibus proxy to whose accounts the notes in book-entry form are
credited on the applicable record date.
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Principal, premium, if any, and/or interest, if any, payments on the Global
Notes representing the notes in book-entry form will be made in immediately
available funds to the Depository. The Depository's practice is to credit direct
participants' accounts on the applicable payment date in accordance with their
respective holdings shown on the Depository's records unless the Depository has
reason to believe that it will not receive payment on the applicable payment
date. Payments by participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name", and
will be the responsibility of the applicable participant and not of the
Depository, the trustee or Newell, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal,
premium, if any, and/or interest, if any, to the Depository is the
responsibility of Newell and the trustee, disbursement of payments to direct
participants will be the responsibility of the Depository, and disbursement of
payments to the beneficial owners will be the responsibility of direct
participants and indirect participants.
If applicable, redemption notices shall be sent to Cede & Co. If less than
all of the notes in book-entry form of like tenor and terms are being redeemed,
the Depository's practice is to determine by lot the amount of the interest of
each direct participant in the issue to be redeemed.
A beneficial owner will give notice of any option to elect to have its notes
in book-entry form repaid by Newell, through its participant, to the trustee,
and will effect delivery of such notes in book-entry form by causing the direct
participant to transfer the participant's interest in the Global Note or Notes
representing the applicable notes in book-entry form, on the Depository's
records, to the trustee. The requirement for physical delivery of notes in
book-entry form in connection with a demand for repayment will be deemed
satisfied when the ownership rights in the Global Note or Notes representing the
notes in book-entry form are transferred by direct participants on the
Depository's records.
The Depository may discontinue providing its services as securities
depository with respect to the notes in book-entry form at any time by giving
reasonable notice to Newell or the trustee. In the event that a successor
securities depository is not obtained, notes in certificated form are required
to be printed and delivered.
Newell may decide to discontinue use of the system of book-entry transfers
through the Depository or a successor securities depository. In that event,
notes in certificated form will be printed and delivered.
Purchases of notes in book-entry form must be made by or through
participants, which will receive a credit on the records of the Depository. The
ownership interest of the beneficial owner or the actual purchaser of each note
in book-entry form is in turn to be recorded on the participants' or indirect
participants' records. Beneficial owners will not receive written confirmation
from the Depository of their purchase, but beneficial owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the participant or indirect
participant through which the beneficial owner entered into the transaction.
Ownership of beneficial interests in Global Notes will be shown on, and the
transfer of such ownership interests will be effected only through, records
maintained by the Depository (with respect to interests of participants) and on
the records of participants (with respect to interests of persons held through
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
limits and laws may impair the ability to own, transfer or pledge beneficial
interests in Global Notes.
So long as the Depository, or its nominee, is the registered owner of a
Global Note, the Depository or its nominee, as the case may be, will be
considered the sole owner or holder of the notes represented by such Global Note
for all purposes under the indenture. Except as provided below, beneficial
owners of a Global Note will not be entitled to have the notes represented by a
Global Note
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registered in their names, will not receive or be entitled to receive physical
delivery of the notes in definitive form and will not be considered the owners
or holders thereof under the indenture. Accordingly, each person owning a
beneficial interest in a Global Note must rely on the procedures of the
Depository and, if that person is not a participant, on the procedures of the
participant through which that person owns its interest, to exercise any rights
of a holder under the indenture. Newell understands that under existing industry
practices, in the event that Newell requests any action of holders or that an
owner of a beneficial interest in a Global Note desires to give or take any
action which a holder is entitled to give or take under the indenture, the
Depository would authorize the participants holding the relevant beneficial
interests to give or take the desired action, and the participants would
authorize beneficial owners owning through the participants to give or take the
action or would otherwise act upon the instructions of beneficial owners.
Conveyance of notices and other communications by the Depository to
participants, by participants to indirect participants, and by participants and
indirect participants to beneficial owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
YEAR 2000 COMPLIANCE
DTC has advised Newell that management of the Depository is aware that some
computer applications, systems and the like for processing data ("Systems") that
are dependent upon calendar dates, including dates before, on, and after January
1, 2000, may encounter "Year 2000 problems". The Depository has informed direct
and indirect participants and other members of the financial community (the
"Industry") that it has developed and is implementing a program so that its
Systems, as the same relate to the timely payment of distributions (including
principal and interest payments) to security holders, book-entry deliveries, and
settlement of trades within the Depository ("Depository Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, the Depository's plan
includes a testing phase, which is expected to be completed within appropriate
time frames.
However, the Depository's ability to perform properly its services is also
dependent upon other parties, including, but not limited to, issuers and their
agents, as well as the Depository's direct and indirect participants, third
party vendors from whom the Depository licenses software and hardware, and third
party vendors on whom the Depository relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. The Depository has informed the Industry that it is contacting
(and will continue to contact) third party vendors from whom the Depository
acquires services to: (a) impress upon them the importance of such services
being Year 2000 compliant; and (b) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, the Depository is in the process of developing such contingency plans
as it deems appropriate.
According to the Depository, the information in the preceding two paragraphs
with respect to the Depository has been provided to the Industry for
informational purposes only and is not intended to serve as a representation,
warranty, or contract modification of any kind.
EXCHANGE FOR NOTES IN CERTIFICATED FORM
If:
(a) the Depository is at any time unwilling or unable to continue as
Depository and a successor depository is not appointed by Newell within
60 days,
(b) Newell executes and delivers to the trustee a company order to the
effect that the Global Notes shall be exchangeable, or
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(c) an Event of Default has occurred and is continuing with respect to the
notes,
the Global Note or Global Notes will be exchangeable for notes in definitive
form of like tenor and of an equal aggregate principal amount, in denominations
of $1,000 and integral multiples of $1,000. The definitive notes will be
registered in the name or names as the Depository will instruct the trustee. It
is expected that instructions may be based upon directions received by the
Depository from participants with respect to ownership of beneficial interests
in Global Notes.
The information in this section concerning the Depository and the
Depository's system has been obtained from sources that Newell believes to be
reliable, but Newell takes no responsibility for the accuracy of the
information.
UNITED STATES FEDERAL INCOME TAXATION
The following summary of certain United States Federal income tax
consequences of the purchase, ownership and disposition of the notes is based
upon laws, regulations, rulings and decisions now in effect, all of which are
subject to change (including changes in effective dates) or possible differing
interpretations. It deals only with notes held as capital assets and does not
purport to deal with persons in special tax situations, such as financial
institutions, insurance companies, regulated investment companies, dealers in
securities or currencies, persons holding notes as a hedge against currency
risks or as a position in a "straddle" for tax purposes, or persons whose
functional currency is not the United States dollar. It also does not deal with
holders other than original purchasers (except where otherwise specifically
noted). Persons considering the purchase of the notes should consult their own
tax advisors concerning the application of United States Federal income tax laws
to their particular situations as well as any consequences of the purchase,
ownership and disposition of the notes arising under the laws of any other
taxing jurisdiction.
As used herein, the term "U.S. Holder" means a beneficial owner of a note
that is for United States Federal income tax purposes (1) a citizen or resident
of the United States, (2) a corporation or a partnership (including an entity
treated as a corporation or a partnership for United States Federal income tax
purposes) created or organized in or under the laws of the United States, any
state thereof or the District of Columbia (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise), (3) an estate whose
income is subject to United States Federal income tax regardless of its source,
(4) a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust, or
(5) any other person whose income or gain in respect of a note is effectively
connected with the conduct of a United States trade or business. Certain trusts
not described in clause (4) above in existence on August 20, 1996 that elect to
be treated as a United States person will also be a U.S. Holder for purposes of
the following discussion. As used herein, the term "non-U.S. Holder" means a
beneficial owner of a note that is not a U.S. Holder.
U.S. HOLDERS
"Payments of Interest." Payments of interest on a note generally will be
taxable to a U.S. Holder as ordinary interest income at the time such payments
are accrued or are received (in accordance with the U.S. Holder's regular method
of tax accounting).
"Original Issue Discount." The following summary is a general discussion of
the United States Federal income tax consequences to U.S. Holders of the
purchase, ownership and disposition of notes issued with original issue discount
("Discount Notes"). The following summary is based upon final Treasury
regulations (the "OID Regulations") released by the Internal Revenue Service on
January 27, 1994, as amended on June 11, 1996, under the original issue discount
provisions of the Code.
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For United States Federal income tax purposes, original issue discount is
the excess of the stated redemption price at maturity of a note over its issue
price, if such excess equals or exceeds a de minimis amount (generally 1/4 of 1%
of the note's stated redemption price at maturity multiplied by the number of
complete years to its maturity from its issue date or, in the case of a note
providing for the payment of any amount other than qualified stated interest
prior to maturity, multiplied by the weighted average maturity of the note). The
issue price of each note of an issue of notes equals the first price at which a
substantial amount of the notes has been sold (ignoring sales to bond houses,
brokers, or similar persons or organizations acting in the capacity of
underwriters, placement agents, or wholesalers). The stated redemption price at
maturity of a note is the sum of all payments provided by the note other than
"qualified stated interest" payments. The term "qualified stated interest"
generally means stated interest that is unconditionally payable in cash or
property (other than debt instruments of the issuer) at least annually at a
single fixed rate. In addition, under the OID Regulations, if a note bears
interest for one or more accrual periods at a rate below the rate applicable for
the remaining term of the note (e.g., notes with teaser rates or interest
holidays), and if the greater of either the resulting foregone interest on the
applicable note or any "true" discount on the note (i.e., the excess of the
note's stated principal amount over its issue price) equals or exceeds a
specified "de minimis" amount, then the stated interest on the note would be
treated as original issue discount rather than qualified stated interest.
Payments of qualified stated interest on a note are taxable to a U.S. Holder
as ordinary interest income at the time such payments are accrued or are
received (in accordance with the U.S. Holder's regular method of tax
accounting). A U.S. Holder of a Discount Note must include original issue
discount in income as ordinary interest for United States Federal income tax
purposes as it accrues under a constant yield method in advance of receipt of
the cash payments attributable to such income, regardless of the U.S. Holder's
regular method of tax accounting. In general, the amount of original issue
discount included in income by the initial U.S. Holder of a Discount Note is the
sum of the daily portions of original issue discount with respect to the
Discount Note for each day during the taxable year (or portion of the taxable
year) on which the U.S. Holder held the Discount Note. The "daily portion" of
original issue discount on any Discount Note is determined by allocating to each
day in any accrual period a ratable portion of the original issue discount
allocable to that accrual period. An "accrual period" may be of any length and
the accrual periods may vary in length over the term of the Discount Note,
provided that each accrual period is no longer than one year and each scheduled
payment of principal or interest occurs either on the final day of an accrual
period or on the first day of an accrual period. The amount of original issue
discount allocable to each accrual period is generally equal to the difference
between (1) the product of the Discount Note's adjusted issue price at the
beginning of such accrual period and its yield to maturity (determined on the
basis of compounding at the close of each accrual period and appropriately
adjusted to take into account the length of the particular accrual period) and
(2) the amount of any qualified stated interest payments allocable to such
accrual period. The "adjusted issue price" of a Discount Note at the beginning
of any accrual period is the sum of the issue price of the Discount Note plus
the amount of original issue discount allocable to all prior accrual periods
minus the amount of any prior payments on the Discount Note that were not
qualified stated interest payments. Under these rules, U.S. Holders generally
will have to include in income increasingly greater amounts of original issue
discount in successive accrual periods.
A U.S. Holder who purchases a Discount Note for an amount that is greater
than its adjusted issue price as of the purchase date and less than or equal to
the sum of all amounts payable on the Discount Note after the purchase date
other than payments of qualified stated interest, will be considered to have
purchased the Discount Note at an "acquisition premium", Under the acquisition
premium rules, the amount of original issue discount which such U.S. Holder must
include in its gross income with respect to such Discount Note for any taxable
year (or portion thereof in which the U.S. Holder holds the Discount Note) will
be reduced (but not below zero) by the portion of the acquisition premium
properly allocable to the period.
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Under the OID Regulations, Floating Rate Notes and Indexed Notes
(hereinafter "Variable Notes") are subject to special rules whereby a Variable
Note will qualify as a "variable rate debt instrument" if (a) its issue price
does not exceed the total noncontingent principal payments due under the
Variable Note by more than a specified "de minimis" amount and (b) it provides
for stated interest, paid or compounded at least annually, at current values of
(1) one or more qualified floating rates, (2) a single fixed rate and one or
more qualified floating rates, (3) a single objective rate, or (4) a single
fixed rate and a single objective rate that is a qualified inverse floating
rate.
A "qualified floating rate" is any variable rate where variations in the
value of such rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the
Variable Note is denominated. Although a multiple of a qualified floating rate
will generally not itself constitute a qualified floating rate, a variable rate
equal to the product of a qualified floating rate and a fixed multiple that is
greater than .65 but not more than 1.35 will constitute a qualified floating
rate. A variable rate equal to the product of a qualified floating rate and a
fixed multiple that is greater than .65 but not more than 1.35, increased or
decreased by a fixed rate, will also constitute a qualified floating rate. In
addition, under the OID Regulations, two or more qualified floating rates that
can reasonably be expected to have approximately the same values throughout the
term of the Variable Note (E.G., two or more qualified floating rates with
values within 25 basis points of each other as determined on the Variable Note's
issue date) will be treated as a single qualified floating rate. Notwithstanding
the foregoing, a variable rate that would otherwise constitute a qualified
floating rate but which is subject to one or more restrictions such as a maximum
numerical limitation (I.E., a cap) or a minimum numerical limitation (I.E., a
floor) may, under certain circumstances, fail to be treated as a qualified
floating rate under the OID Regulations unless such cap or floor is fixed
throughout the term of the note. An "objective rate" is a rate that is not
itself a qualified floating rate but which is determined using a single fixed
formula that is based on objective financial or economic information. A rate
will not qualify as an objective rate if it is based on information that is
within the control of the issuer (or a related party) or that is unique to the
circumstances of the issuer (or a related party), such as dividends, profits, or
the value of the issuer's stock (although a rate does not fail to be an
objective rate merely because it is based on the credit quality of the issuer).
A "qualified inverse floating rate" is any objective rate where such rate is
equal to a fixed rate minus a qualified floating rate, as long as variations in
the rate can reasonably be expected to inversely reflect contemporaneous
variations in the qualified floating rate. The OID Regulations also provide that
if a Variable Note provides for stated interest at a fixed rate for an initial
period of one year or less followed by a variable rate that is either a
qualified floating rate or an objective rate and if the variable rate on the
Variable Note's issue date is intended to approximate the fixed rate (e.g., the
value of the variable rate on the issue date does not differ from the value of
the fixed rate by more than 25 basis points), then the fixed rate and the
variable rate together will constitute either a single qualified floating rate
or objective rate, as the case may be.
If a Variable Note that provides for stated interest at either a single
qualified floating rate or a single objective rate throughout the term thereof
qualifies as a "variable rate debt instrument" under the OID Regulations, and if
the interest on a Variable Note is unconditionally payable in cash or property
(other than debt instruments of the issuer) at least annually, then all stated
interest on the Variable Note will constitute qualified stated interest and will
be taxed accordingly. Thus, a Variable Note that provides for stated interest at
either a single qualified floating rate or a single objective rate throughout
the term thereof and that qualifies as a "variable rate debt instrument" under
the OID Regulations will generally not be treated as having been issued with
original issue discount unless the Variable Note is issued at a "true" discount
(i.e., at a price below the Variable Note's stated principal amount) in excess
of a specified "de minimis" amount. The amount of qualified stated interest and
the amount of original issue discount, if any, that accrues during an accrual
period on such a Variable Note is determined under the rules applicable to fixed
rate debt instruments by assuming that the variable rate is a fixed rate equal
to (1) in the case of a qualified floating rate or qualified inverse floating
rate,
S-25
<PAGE>
the value as of the issue date, of the qualified floating rate or qualified
inverse floating rate, or (2) in the case of an objective rate (other than a
qualified inverse floating rate), a fixed rate that reflects the yield that is
reasonably expected for the Variable Note. The qualified stated interest
allocable to an accrual period is increased (or decreased) if the interest
actually paid during an accrual period exceeds (or is less than) the interest
assumed to be paid during the accrual period pursuant to the foregoing rules.
In general, any other Variable Note that qualifies as a "variable rate debt
instrument" will be converted into an "equivalent" fixed rate debt instrument
for purposes of determining the amount and accrual of original issue discount
and qualified stated interest on the Variable Note. The OID Regulations
generally require that such a Variable Note be converted into an "equivalent"
fixed rate debt instrument by substituting any qualified floating rate or
qualified inverse floating rate provided for under the terms of the Variable
Note with a fixed rate equal to the value of the qualified floating rate or
qualified inverse floating rate, as the case may be, as of the Variable Note's
issue date. Any objective rate (other than a qualified inverse floating rate)
provided for under the terms of the Variable Note is converted into a fixed rate
that reflects the yield that is reasonably expected for the Variable Note. In
the case of a Variable Note that qualifies as a "variable rate debt instrument"
and provides for stated interest at a fixed rate in addition to either one or
more qualified floating rates or a qualified inverse floating rate, the fixed
rate is initially converted into a qualified floating rate (or a qualified
inverse floating rate, if the Variable Note provides for a qualified inverse
floating rate). Under such circumstances, the qualified floating rate or
qualified inverse floating rate that replaces the fixed rate must be such that
the fair market value of the Variable Note as of the Variable Note's issue date
is approximately the same as the fair market value of an otherwise identical
debt instrument that provides for either the qualified floating rate or
qualified inverse floating rate rather than the fixed rate. Subsequent to
converting the fixed rate into either a qualified floating rate or a qualified
inverse floating rate, the Variable Note is then converted into an "equivalent"
fixed rate debt instrument in the manner described above.
Once the Variable Note is converted into an "equivalent" fixed rate debt
instrument pursuant to the foregoing rules, the amount of original issue
discount and qualified stated interest, if any, are determined for the
"equivalent" fixed rate debt instrument by applying the general original issue
discount rules to the "equivalent" fixed rate debt instrument and a U.S. Holder
of the Variable Note will account for such original issue discount and qualified
stated interest as if the U.S. Holder held the "equivalent" fixed rate debt
instrument. Each accrual period appropriate adjustments will be made to the
amount of qualified stated interest or original issue discount assumed to have
been accrued or paid with respect to the "equivalent" fixed rate debt instrument
in the event that such amounts differ from the actual amount of interest accrued
or paid on the Variable Note during the accrual period.
If a Variable Note does not qualify as a "variable rate debt instrument"
under the OID Regulations, then the Variable Note would be treated as a
contingent payment debt obligation. On June 11, 1996, the Treasury Department
issued final regulations (the "CPDI Regulations") concerning the proper United
States Federal income tax treatment of contingent payment debt instruments. In
general, the CPDI Regulations would cause the timing and character of income,
gain or loss reported on a contingent payment debt instrument to substantially
differ from the timing and character of income, gain or loss reported on a
contingent payment debt instrument under general principles of current United
States Federal income tax law. Specifically, the CPDI Regulations generally
require a U.S. Holder of such an instrument to include future contingent and
noncontingent interest payments in income as such interest accrues based upon a
projected payment schedule. Moreover, in general, under the CPDI Regulations,
any gain recognized by a U.S. Holder on the sale, exchange, or retirement of a
contingent payment debt instrument will be treated as ordinary income and all or
a portion of any loss realized could be treated as ordinary loss as opposed to
capital loss (depending upon the circumstances). The CPDI Regulations apply to
debt instruments issued on or after August 13, 1996.
S-26
<PAGE>
The proper United States Federal income tax treatment of Variable Notes that are
treated as contingent payment debt obligations will be more fully described in
the applicable pricing supplement. Furthermore, any other special United States
Federal income tax considerations, not otherwise discussed herein, which are
applicable to any particular issue of notes will be discussed in the applicable
pricing supplement.
Certain of the notes (1) may be redeemable at the option of Newell prior to
their stated maturity (a "call option") and/or (2) may be repayable at the
option of the holder prior to their stated maturity (a "put option"). Notes
containing such features may be subject to rules that differ from the general
rules discussed above. Investors intending to purchase notes with such features
should consult their own tax advisors, since the original issue discount
consequences will depend, in part, on the particular terms and features of the
purchased notes.
U.S. Holders may generally, upon election, include in income all interest
(including stated interest, acquisition discount, original issue discount, "de
minimis" original issue discount, market discount, "de minimis" market discount,
and unstated interest, as adjusted by any amortizable bond premium or
acquisition premium) that accrues on a debt instrument by using the constant
yield method applicable to original issue discount, subject to certain
limitations and exceptions.
"Short-Term Notes." Notes that have a fixed maturity of one year or less
("Short-Term Notes") will be treated as having been issued with original issue
discount. In general, an individual or other cash method U.S. Holder is not
required to accrue such original issue discount unless the U.S. Holder elects to
do so. If such an election is not made, any gain recognized by the U.S. Holder
on the sale, exchange or maturity of the Short-Term Note will be ordinary income
to the extent of the original issue discount accrued on a straight-line basis,
or upon election under the constant yield method (based on daily compounding),
through the date of sale or maturity, and a portion of the deductions otherwise
allowable to the U.S. Holder for interest on borrowings allocable to the
Short-Term Note will be deferred until a corresponding amount of income is
realized. U.S. Holders who report income for United States Federal income tax
purposes under the accrual method, and certain other holders including banks and
dealers in securities, are required to accrue original issue discount on a
Short-Term Note on a straight-line basis unless an election is made to accrue
the original issue discount under a constant yield method (based on daily
compounding).
"Market Discount." If a U.S. Holder purchases a note, other than a Discount
Note, for an amount that is less than its issue price (or, in the case of a
subsequent purchaser, its stated redemption price at maturity) or, in the case
of a Discount Note, for an amount that is less than its adjusted issue price as
of the purchase date, such U.S. Holder will be treated as having purchased the
note at a "market discount," unless such market discount is less than a
specified "de minimis" amount.
Under the market discount rules, a U.S. Holder will be required to treat any
partial principal payment (or, in the case of a Discount Note, any payment that
does not constitute qualified stated interest) on, or any gain realized on the
sale, exchange, retirement or other disposition of, a note as ordinary income to
the extent of the lesser of (1) the amount of such payment or realized gain or
(2) the market discount which has not previously been included in income and is
treated as having accrued on the note at the time of such payment or
disposition. Market discount will be considered to accrue ratably during the
period from the date of acquisition to the maturity date of the note, unless the
U.S. Holder elects to accrue market discount on the basis of semiannual
compounding.
A U.S. Holder may be required to defer the deduction of all or a portion of
the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry a note with market discount until the maturity of the note or
certain earlier dispositions, because a current deduction is only allowed to the
extent the interest expense exceeds an allocable portion of market discount. A
U.S. Holder may elect to include market discount in income currently as it
accrues (on either a ratable or semiannual compounding basis), in which case the
rules described above regarding the treatment as
S-27
<PAGE>
ordinary income of gain upon the disposition of the note and upon the receipt of
certain cash payments and regarding the deferral of interest deductions will not
apply. Generally, such currently included market discount is treated as ordinary
interest for United States Federal income tax purposes. Such an election will
apply to all debt instruments acquired by the U.S. Holder on or after the first
day of the taxable year to which such election applies and may be revoked only
with the consent of the IRS.
"Premium." If a U.S. Holder purchases a note for an amount that is greater
than the sum of all amounts payable on the note after the purchase date other
than payments of qualified stated interest, the U.S Holder will be considered to
have purchased the note with "amortizable bond premium" equal in amount to such
excess. A U.S. Holder may elect to amortize such premium using a constant yield
method over the remaining term of the note and may offset interest otherwise
required to be included in respect of the note during any taxable year by the
amortized amount of such excess for the taxable year. However, if the note may
be optionally redeemed after the U.S. Holder acquires it at a price in excess of
its stated redemption price at maturity, special rules would apply which could
result in a deferral of the amortization of some bond premium until later in the
term of the note. Any election to amortize bond premium applies to all taxable
debt obligations then owned and thereafter acquired by the U.S. Holder and may
be revoked only with the consent of the IRS.
"Disposition of a Note." Except as discussed above, upon the sale, exchange
or retirement of a note, a U.S. Holder generally will recognize taxable gain or
loss equal to the difference between the amount realized on the sale, exchange
or retirement (other than amounts representing accrued and unpaid interest) and
the U.S. Holder's adjusted tax basis in the note. A U.S. Holder's adjusted tax
basis in a note generally will equal the U.S. Holder's initial investment in the
note increased by any original issue discount included in income (and accrued
market discount, if any, if the U.S. Holder has included such market discount in
income) and decreased by the amount of any payments, other than qualified stated
interest payments, received and amortizable bond premium taken with respect to
the note. Such gain or loss generally will be long-term capital gain or loss if
the note were held for more than one year.
NON-U.S. HOLDERS
A non-U.S. Holder will not be subject to United States Federal income taxes
on payments of principal, premium (if any) or interest (including original issue
discount, if any) on a note, unless such non-U.S. Holder is a direct or indirect
10% or greater shareholder of Newell, a controlled foreign corporation related
to Newell or a bank receiving interest described in section 881(c)(3)(A) of the
Code. To qualify for the exemption from taxation, the last United States payor
in the chain of payment prior to payment to a non-U.S. Holder (the "Withholding
Agent") must have received in the year in which a payment of interest or
principal occurs, or in either of the two preceding calendar years, a statement
that (1) is signed by the beneficial owner of the note under penalties of
perjury, (2) certifies that such owner is not a U.S. Holder and (3) provides the
name and address of the beneficial owner. The statement may be made on an IRS
Form W-8 or a substantially similar form, and the beneficial owner must inform
the Withholding Agent of any change in the information on the statement within
30 days of such change. If a note is held through a securities clearing
organization or certain other financial institutions, the organization or
institution may provide a signed statement to the Withholding Agent. However, in
such case, the signed statement must be accompanied by a copy of the IRS Form
W-8 or the substitute form provided by the beneficial owner to the organization
or institution. The Treasury Department is considering implementation of further
certification requirements aimed at determining whether the issuer of a debt
obligation is related to holders thereof.
S-28
<PAGE>
Generally, a non-U.S. Holder will not be subject to United States Federal
income taxes on any amount which constitutes capital gain upon retirement or
disposition of a note, provided (i) the gain is not effectively connected with
the conduct of a trade or business in the United States by the non-U.S. Holder
and (ii) the non-U.S. Holder is not present in the United States for 183 days or
more in the year of disposition of the note and certain other conditions are
met. Certain other exceptions may be applicable, and a non-U.S. Holder should
consult its tax advisor in this regard.
The notes will not be includible in the estate of a non-U.S. Holder unless
the individual is a direct or indirect 10% or greater shareholder of Newell or,
at the time of such individual's death, payments in respect of the notes would
have been effectively connected with the conduct by such individual of a trade
or business in the United States.
BACKUP WITHHOLDING
Backup withholding of United States Federal income tax at a rate of 31% may
apply to payments made in respect of the notes to registered owners who are not
"exempt recipients" and who fail to provide certain identifying information
(such as the registered owner's taxpayer identification number) in the required
manner. Generally, individuals are not exempt recipients, whereas corporations
and certain other entities generally are exempt recipients. Payments made in
respect of the notes to a U.S. Holder must be reported to the IRS, unless the
U.S. Holder is an exempt recipient or establishes an exemption. Compliance with
the identification procedures described in the preceding section would establish
an exemption from backup withholding for those non-U.S. Holders who are not
exempt recipients.
In addition, upon the sale of a note to (or through) a broker, the broker
must withhold 31% of the entire purchase price, unless either (1) the broker
determines that the seller is a corporation or other exempt recipient or (2) the
seller provides, in the required manner, certain identifying information and, in
the case of a non-U.S. Holder, certifies that such seller is a non-U.S. Holder
(and certain other conditions are met). Such a sale must also be reported by the
broker to the IRS, unless either (1) the broker determines that the seller is an
exempt recipient or (2) the seller certifies its non-U.S. status (and certain
other conditions are met). Certification of the registered owner's non-U.S.
status would be made normally on an IRS Form W-8 under penalties of perjury,
although in certain cases it may be possible to submit other documentary
evidence. In addition, prospective U.S. Holders are strongly urged to consult
their own tax advisors with respect to the New Withholding Regulations described
below.
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's United States Federal income tax provided the required
information is furnished to the IRS.
NEW WITHHOLDING REGULATIONS
On October 6, 1997, the Treasury issued new regulations (the "New
Regulations") which make certain modifications to the withholding, backup
withholding and information reporting rules. The New Regulations attempt to
unify certification requirements and modify reliance standards. The New
Regulations will generally be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are urged to
consult their own tax advisors regarding the New Regulations.
S-29
<PAGE>
PLAN OF DISTRIBUTION
The notes are being offered on a continuous basis for sale by Newell to or
through the agents. Each agent may purchase notes, as principal, from Newell
from time to time for resale to investors and other purchasers at varying prices
relating to prevailing market prices at the time of resale as determined by such
agent, or, if so specified in the applicable pricing supplement, for resale at a
fixed offering price. If agreed to by Newell and an agent, such agent may also
utilize its reasonable efforts on an agency basis to solicit offers to purchase
the notes at 100% of the principal amount thereof, unless otherwise specified in
the applicable pricing supplement. Newell will pay a commission to an agent,
ranging from .125% to .750% of the principal amount of each note, depending upon
its stated maturity, sold through the agent as an agent of Newell. Commissions
with respect to notes with stated maturities in excess of 30 years that are sold
through an agent as an agent of Newell will be negotiated between Newell and the
agent at the time of such sale. Newell may also sell notes directly to
purchasers in those jurisdictions in which it is permitted to do so, and may
engage other agents to act on the same terms as the agents. No commission will
be payable by Newell on notes sold directly by Newell.
Unless otherwise specified in the applicable pricing supplement, any note
sold to an agent as principal will be purchased by such agent at a price equal
to 100% of the principal amount thereof less a percentage of the principal
amount equal to the commission applicable to an agency sale of a note of
identical maturity. Each agent may sell notes it has purchased from Newell as
principal to other dealers for resale to investors and other purchasers, and may
allow any portion of the discount received in connection with such purchase from
Newell to be a concession to such dealers. After the initial offering of notes,
the offering price (in the case of notes to be resold on a fixed offering price
basis), the concession and the discount may be changed.
Newell reserves the right to withdraw, cancel or modify the offer made
hereby without notice and may reject offers in whole or in part (whether placed
directly with Newell or through any agent). Each agent will have the right to
reject in whole or in part any offer to purchase notes received by it on an
agency basis.
Upon issuance, the notes will not have an established trading market. The
notes will not be listed on any securities exchange. The agents may from time to
time purchase and sell notes in the secondary market, but no agent is obligated
to do so, and there can be no assurance that there will be a secondary market
for the notes or that there will be liquidity in the secondary market if one
develops. From time to time, an agent may make a market in the notes, but no
agent is obligated to do so and may discontinue any market-making activity at
any time.
The agents and their affiliates may be customers of, engage in transactions
with or perform services for Newell and certain of its affiliates in the
ordinary course of business. Without limiting the foregoing, the agents and
their affiliates have engaged and may in the future engage in investment and
commercial banking transactions with Newell and certain of its affiliates. Chase
Securities Inc. is an affiliate of the trustee. See "Description of Debt
Securities--The Trustee" in the Prospectus.
The agents may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933. Newell has agreed to indemnify the agents against
certain liabilities (including liabilities under the Securities Act), or to
contribute to payment the agents may be required to make in respect thereof.
Newell has agreed to reimburse the agents for certain other expenses.
Concurrently with the offering of notes described herein, Newell may issue
and sell other Securities described in the accompanying prospectus and such
sales shall reduce the aggregate initial offering price of notes offered hereby.
In connection with an offering of notes purchased by one or more agents as
principal on a fixed price basis, such agent(s) will be permitted to engage in
certain transactions that stabilize the price of such notes. Such transactions
may consist of bids or purchases for the purposes of pegging, fixing or
S-30
<PAGE>
maintaining the price of such notes. If the agent or agents creates or create,
as the case may be, a short position in such notes, i.e., if it sells or they
sell notes in an aggregate principal amount exceeding that set forth in the
applicable pricing supplement, such agent(s) may reduce that short position by
purchasing notes in the open market. In general, purchases of notes for the
purpose of stabilization or to reduce a short position could cause the price of
notes to be higher than it might be in the absence of such purchases.
Neither Newell nor any of the agents makes any representation or prediction
as to the direction or magnitude of any effect that the transactions described
above may have on the price of the notes. In addition, neither Newell nor any of
the agents makes any representation that the agents will engage in any such
transactions or that such transactions, once commenced, will not be discontinued
without notice.
VALIDITY OF THE NOTES
The validity of the notes will be passed upon for Newell by Schiff Hardin &
Waite, Chicago, Illinois. Certain legal matters relating to the notes will be
passed upon for the agents by Brown & Wood LLP, New York, New York.
S-31
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION RELATING TO THESE SECURITIES IS EFFECTIVE.
THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 14, 1999
PROSPECTUS
BY THIS PROSPECTUS
NEWELL RUBBERMAID INC.
MAY OFFER
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission under a "shelf" registration process. Under
this process, we may sell any combination of the securities described in this
prospectus in one or more offerings up to a total initial offering price of
$779,500,000. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities registered under this
process, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
this prospectus and any supplement carefully before you invest. This prospectus
may not be used to make sales of offered securities unless accompanied by a
prospectus supplement.
You should not assume that the information in this prospectus or any later
prospectus supplement is accurate as of any date other than the date on the
front of the document. We have not authorized anyone to provide you with
information that is different from, or additional to, the information provided
in this prospectus or any later prospectus supplement, and you should not rely
on any unauthorized information. We are not making an offer to sell securities
in any state or country where the offer is not permitted.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
NEWELL RUBBERMAID INC...................................................................................... 2
WHERE YOU CAN FIND MORE INFORMATION........................................................................ 2
USE OF PROCEEDS............................................................................................ 3
RATIO OF EARNINGS TO FIXED CHARGES......................................................................... 3
DESCRIPTION OF DEBT SECURITIES............................................................................. 4
PARTICULAR TERMS OF THE SENIOR DEBT SECURITIES............................................................. 11
PARTICULAR TERMS OF THE SUBORDINATED DEBT SECURITIES....................................................... 15
DESCRIPTION OF CAPITAL STOCK............................................................................... 16
PLAN OF DISTRIBUTION....................................................................................... 18
LEGAL OPINION.............................................................................................. 19
EXPERTS.................................................................................................... 19
</TABLE>
<PAGE>
NEWELL RUBBERMAID INC.
Newell Rubbermaid Inc. ("Newell," "we," "us" and "our") is an international
manufacturer and marketer of everyday consumer products. Newell's basic business
strategy is to merchandise a multi-product offering of brand name consumer
products that are concentrated in product categories with relatively steady
demand not dependent on major changes in fashion, technology or season. Newell
also differentiates itself by emphasizing superior customer service. Newell
sells these products to a variety of large retailers and wholesalers under
numerous well-known brand names. Newell's business segments and brand names
include the following:
<TABLE>
<CAPTION>
BUSINESS SEGMENTS PRINCIPAL BRANDS
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
HOUSEHOLD PRODUCTS
- Aluminum Cookware and Bakeware Mirro-Registered Trademark-, Wear
Ever-Registered Trademark-,
Calphalon-Registered Trademark-,
Panex-Registered Trademark-
- Glassware Anchor Hocking-Registered Trademark-
- Hair Accessories Goody-Registered Trademark-, Ace-Registered Trademark-,
Wilhold-Registered Trademark-
- Home/Commercial Products Rubbermaid-Registered Trademark-,
Curver-Registered Trademark-
- Infant Products Graco-Registered Trademark-,
Century-Registered Trademark-
- Juvenile Products Little Tikes-Registered Trademark-
HARDWARE AND HOME FURNISHINGS
- Window Treatments Levolor-Registered Trademark-,
Kirsch-Registered Trademark-,
Newell-Registered Trademark-
- Picture Frames Intercraft-Registered Trademark-, Burnes of
Boston-Registered Trademark-,
Holson-Registered Trademark-
- Hardware and Tools Amerock-Registered Trademark-,
EZPaintr-Registered Trademark-,
BernzOmatic-Registered Trademark-,
Bulldog-Registered Trademark-
- Home Storage Products Lee Rowan-Registered Trademark-
OFFICE PRODUCTS
- Markers and Writing Instruments Sanford-Registered Trademark-,
Berol-Registered Trademark-, Eberhard
Faber-Registered Trademark-,
Rotring-Registered Trademark-
- Office Storage and Organization Products Rolodex-Registered Trademark-,
Eldon-Registered Trademark-
Newell's major customers include:
- Discount stores and warehouse clubs;
- Home centers and hardware stores;
- Office superstores and contract stationers;
- Toy stores;
- Department and specialty stores; and
- Drug and grocery stores.
</TABLE>
Newell's principal corporate offices are located at 29 East Stephenson
Street, Freeport, Illinois 61032, and its telephone number is 1-815-235-4171.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the Securities and Exchange Commission's public
reference rooms in Washington, D.C., New York, New York and Chicago, Illinois.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for further
information on the public reference rooms. Our Securities and Exchange
Commission filings are also available to the public at the Securities and
Exchange Commission's web site at http://www.sec.gov.
2
<PAGE>
The Securities and Exchange Commission allows us to "incorporate by
reference" into this prospectus the information we file with it, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part of
this prospectus, and later information that we file with the Securities and
Exchange Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the Securities and Exchange Commission under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until our offering is completed:
1. Annual Report on Form 10-K for the year ended December 31, 1998;
2. The description of our common stock contained in Newell's registration
statement on Form 8-B filed with the Securities and Exchange Commission
on June 30, 1987;
3. The description of our common stock purchase rights contained in our
registration statement on Form 8-A dated August 28, 1998;
4. Our current report on Form 8-K dated and filed with the Securities and
Exchange Commission on March 11, 1999;
5. Our current report on Form 8-K dated March 24, 1999 and filed with the
Securities and Exchange Commission on March 25, 1999;
6. Our quarterly report on Form 10-Q for the quarter ended March 31, 1999;
and
7. Our current report on Form 8-K dated and filed with the Securities and
Exchange Commission on June 30, 1999.
You may request a copy of these filings at no cost by writing to or
telephoning us at the following address:
Newell Rubbermaid Inc.
6833 Stalter Drive, Suite 101
Rockford, Illinois 61108
Tel: 1-800-424-1941
Attn: Office of Investor Relations
USE OF PROCEEDS
Newell expects to use the net proceeds from the sale of the securities for
general corporate purposes. These may include additions to working capital,
repayment of existing debt and acquisitions. If Newell decides to use the net
proceeds from the sale of securities in some other way, Newell will describe the
use of the net proceeds in the prospectus supplement for that offering.
RATIO OF EARNINGS TO FIXED CHARGES
Newell's ratio of earnings to fixed charges for the periods indicated are as
follows:
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
THREE MONTHS ENDED -----------------------------------------------------
MARCH 31, 1999 1998 1997 1996 1995 1994
- --------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
N/A (1) 6.46 4.98 7.51 6.80 14.50
</TABLE>
(1) Earnings were inadequate to cover fixed charges for the three months ended
March 31, 1999.
For purposes of calculating the ratio of earnings to fixed charges,
"earnings" consist of income from continuing operations before income taxes,
adjusted for the portion of fixed charges deducted from these earnings and for
minority interests in income of majority owned subsidiaries that have not
incurred fixed charges. "Fixed charges" consist of interest on all indebtedness
(including capitalized lease obligations),
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amortization of debt expense and the percentage of rental expense on operating
leases deemed representative of the interest factor.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description sets forth general terms that may apply to the
debt securities. The particular terms of any debt securities will be described
in the prospectus supplement relating to those debt securities.
The debt securities will be either our senior debt securities or our
subordinated debt securities. The senior debt securities will be issued under an
indenture dated as of November 1, 1995, between us and The Chase Manhattan Bank,
as trustee. This indenture is referred to as the "senior indenture." The
subordinated debt securities will be issued under an indenture in the form of
the indenture dated as of November 1, 1995 between us and The Chase Manhattan
Bank, as trustee. This indenture is referred to as the "subordinated indenture."
The senior indenture and the subordinated indenture are together called the
"indentures."
Copies of the indentures are filed as exhibits to the registration
statement. For your convenience, we have included references to specific
sections of the indentures in the descriptions below. Capitalized terms not
otherwise defined in this prospectus shall have the meanings shown in the
indenture to which they relate.
The following summaries of provisions of the debt securities and the
indentures are not complete and are qualified in their entirety by express
reference to all of the provisions of the indentures and the debt securities.
Because Newell is a holding company, the right of Newell, and its creditors,
including the holders of the notes, to participate in any distribution of the
assets of any subsidiary upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of the subsidiary, except
to the extent that claims of Newell itself as a creditor of the subsidiary may
be recognized. Neither the debt securities nor the indentures restrict us or any
of our subsidiaries from incurring indebtedness. Substantially all of Newell's
consolidated accounts payable represent obligations of Newell's subsidiaries,
and as of March 31, 1999, the aggregate principal amount of money borrowed by
Newell's consolidated subsidiaries equaled approximately $231.2 million (the
current portion of which was approximately $75.9 million).
Neither of the indentures limits the principal amount of debt securities
that we may issue. Each indenture provides that debt securities may be issued up
to the principal amount that we may separately authorize from time to time. Each
also provides that the debt securities may be denominated in any currency or
currency unit designated by us. Unless otherwise shown in the prospectus
supplement related to that offering, neither the indentures nor the debt
securities will contain any provisions to afford holders of any debt securities
protection in the event of a takeover, recapitalization or similar restructuring
of our business.
The senior debt securities will rank equally with all of our other unsecured
and unsubordinated debt. The subordinated debt securities will rank junior to
all of our senior debt securities and other senior indebtedness as we describe
below under "Particular Terms of the Subordinated Debt Securities--
Subordination."
We will include specific terms relating to a particular series of debt
securities in a prospectus supplement relating to the offering. The terms we
will describe in the prospectus supplement will include some or all of the
following:
(1) the distinct title and type of the debt securities;
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(2) the total principal amount or initial offering price of the debt
securities;
(3) the date or dates when the principal of the debt securities will be
payable;
(4) the rate at which the debt securities will bear interest;
(5) the date from which interest on the debt securities will accrue;
(6) the dates when interest on the debt securities will be payable and the
regular record date for these interest payment dates;
(7) the place where
- the principal, premium, if any, and interest on the debt securities
will be paid,
- registered debt securities may be surrendered for registration of
transfer, and
- debt securities may be surrendered for exchange;
(8) any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
(9) the terms and conditions upon which we will have the option to redeem
the debt securities;
(10) the denominations in which any registered debt securities will be
issuable, if other than denominations of $1,000 or integral multiples,
and the denominations in which any bearer debt securities will be
issuable, if other than a denomination of $5,000;
(11) the identity of each Security Registrar and Paying Agent, and the
designation of the Exchange Rate Agent, if any, if other than the
Trustee;
(12) the portion of the principal amount of debt securities that will be
payable upon acceleration of the Maturity of the debt securities;
(13) the currency used to pay principal, premium and interest on the debt
securities, if other than U.S. Dollars, and whether you or we may elect
to have principal, premium and interest paid in a currency other than
the currency in which the debt securities are denominated;
(14) any index, formula or other method used to determine the amount of
principal, premium or interest on the debt securities;
(15) whether provisions relating to defeasance and covenant defeasance will
be applicable to the series of debt securities;
(16) any changes to the Events of Default, Defaults or to our covenants made
in the applicable indenture;
(17) whether the debt securities are issuable as registered debt securities
or bearer debt securities, whether there are any restrictions relating
to the form in which they are issued and whether bearer and registered
debt securities may be exchanged for each other;
(18) to whom interest will be payable
- if other than the registered Holder (for registered debt securities),
- if other than upon presentation and surrender of the related coupons
(for bearer debt securities), or
- if other than as specified in the indentures (for global debt
securities);
(19) if the debt securities are to be convertible or exchangeable for other
securities, the terms of conversion or exchange;
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(20) particular terms of subordination with respect to subordinated debt
securities; and
(21) any other terms of the debt securities.
We may issue debt securities as original issue discount securities to be
sold at a substantial discount below their principal amount. If we issue
original issue discount securities, then special federal income tax rules that
apply may be described in the prospectus supplement for those debt securities.
REGISTRATION AND TRANSFER
We presently plan to issue each series of debt securities only as registered
securities. However, we may issue a series of debt securities as bearer
securities, or a combination of both registered securities and bearer
securities. If we issue debt securities as bearer securities, they will have
interest coupons attached unless we elect to issue them as zero coupon
securities. (Sections 201 and 301) If we issue bearer securities, we may
describe material U.S. federal income tax consequences and other material
considerations, procedures and limitations in the prospectus supplement for that
offering.
Holders of registered debt securities may present the debt securities for
exchange for different authorized amounts of other debt securities of the same
series and of similar principal amount at the corporate trust office of the
Trustee in New York, New York or at the office of any other transfer agent we
may designate for the purpose and describe in the applicable prospectus
supplement. The registered securities must be duly endorsed or accompanied by a
written instrument of transfer. The agent will not impose a service charge on
you for the transfer or exchange. We may, however, require that you pay any
applicable tax or other governmental charge. We will describe any procedures for
the exchange of bearer securities for other debt securities of the same series
in the prospectus supplement for that offering. Generally, we will not allow you
to exchange registered securities for bearer securities. (Sections 301, 305 and
1002)
In general, unless otherwise specified in the applicable prospectus
supplement, we will issue registered securities without coupons and in
denominations of $1,000, or integral multiples, and bearer securities in
denominations of $5,000. We may issue both registered and bearer securities in
global form. (Sections 301 and 302)
CONVERSION AND EXCHANGE
If any debt securities will be convertible into or exchangeable for our
common stock or other securities, the applicable prospectus supplement will set
forth the terms and conditions of the conversion or exchange, including:
- the conversion price or exchange ratio;
- the conversion or exchange period;
- whether the conversion or exchange will be mandatory or at the option of
the holder or Newell;
- provisions for adjustment of the conversion price or exchange ratio; and
- provisions that may affect the conversion or exchange if the debt
securities are redeemed.
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities, that we will identify in a prospectus
supplement. Unless and until it is exchanged in whole or in
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part for the individual debt securities represented thereby, a global security
may not be registered for transfer or exchange except:
- as a whole by the depositary for the global security to a nominee of the
depositary, by a nominee of the depositary to the depositary or another
nominee of the depositary, or by the depositary or a nominee of the
depositary to a successor depositary or a nominee of the successor
depositary; and
- in any other circumstances described in the prospectus supplement
applicable thereto.
The specific terms of the depositary arrangement with respect to any portion
of a series of debt securities to be represented by a global security will be
described in the prospectus supplement applicable thereto. Newell expects that
the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable prospectus supplement, debt
securities that are to be represented by a global security to be deposited with
or on behalf of a depositary will be represented by a global security or, in
some cases, global securities registered in the name of the depositary or its
nominee. Upon the issuance of the global security, and the deposit of the global
security with or on behalf of the depositary for the global security, the
depositary will credit on its book entry registration and transfer system the
respective principal amounts of the debt securities represented by the global
security to the accounts of institutions that have accounts with the depositary
or its nominee ("participants"). The accounts to be credited will be designated
by the underwriters or agents of the debt securities. If we directly offer and
sell debt securities the accounts to be credited will be designated by us.
Ownership of beneficial interests in the global security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests by participants in the global security will be shown on,
and the transfer of that ownership interest will be effected only through,
records maintained by the depositary or its nominee for the global security.
Ownership of beneficial interests in the global security by persons that hold
through participants will be shown on, and the transfer of that ownership
interest within the participant will be effected only through, records
maintained by the participant. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of the securities in
certificated form. The foregoing limitations and the laws may impair the ability
to transfer beneficial interests in the global securities.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, the depositary or the nominee, as the
case may be, will be considered the sole owner or "Holder" of the debt
securities represented by the global security for all purposes under the
indenture applicable thereto. Unless otherwise specified in the applicable
prospectus supplement, owners of beneficial interests in the global security
will not be entitled to have debt securities of the series represented by the
global security registered in their names, will not receive or be entitled to
receive physical delivery of debt securities of the series in certificated form
and will not be considered the Holders of the debt securities for any purposes
under the indenture applicable thereto. Accordingly, each person owning a
beneficial interest in the global security must rely on the procedures of the
depositary and, if the person is not a participant, on the procedures of the
participant through which the person owns its interest to exercise any rights of
a Holder of debt securities under the indenture applicable thereto. Newell
understands that under existing industry practices, if Newell requests any
action of Holders or an owner of a beneficial interest in the global security
desires to give any notice or take any action a Holder is entitled to give or
take under the indenture applicable thereto, then the depositary would authorize
the participants to give this notice or take this action, and participants would
authorize beneficial owners owning through these participants to give this
notice or take this action or would otherwise act upon the instructions of
beneficial owners owning through them.
Principal of and any premium and interest on a global security will be
payable in the manner described in the applicable prospectus supplement.
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CONSOLIDATION, MERGER AND SALE OF ASSETS
As provided in the indentures, we may, without the consent of Holders of the
debt securities, consolidate with or merge into, or convey, transfer or lease
all or substantially all of our properties and assets to, any person (the
"Survivor"), and we may permit any person to merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to us so long as:
- the Survivor is a corporation, limited liability company, partnership or
trust organized and validly existing under the laws of any United States
jurisdiction and expressly assumes our obligations on the debt securities
and under the indentures;
- immediately after giving effect to the transaction, no Default or Event of
Default shall have occurred and be continuing under the indentures; and
- certain other conditions regarding delivery of an Officers' Certificate
and Opinion of Counsel are met. (Section 801)
ACCELERATION OF MATURITY
If an Event of Default occurs and continues with respect to debt securities
of a particular series, the Trustee or the Holders of not less than 25% in
principal amount of outstanding debt securities of that series may declare the
outstanding debt securities of that series due and payable immediately. (Section
502)
At any time after a declaration of acceleration with respect to debt
securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee therefor, the Holders
of a majority in principal amount of the outstanding debt securities of that
series by written notice to Newell and the Trustee, may rescind and annul the
declaration and its consequences if:
(1) Newell has paid or deposited with the Trustee a sum sufficient to pay in
the Currency in which the debt securities of the series are payable, except as
otherwise specified in the applicable indenture:
- all overdue interest on all outstanding debt securities of that series
and any related Coupons,
- all unpaid principal of and premium, if any, on any of the debt
securities which has become due otherwise than by the declaration of
acceleration, and interest on the unpaid principal at the rate or rates
prescribed therefor in the debt securities,
- to the extent lawful, interest on overdue interest at the rate or rates
prescribed therefor in the debt securities, and
- all sums paid or advanced by the Trustee and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all Events of Default with respect to debt securities of that series,
other than the non-payment of amounts of principal, interest or any premium on
the debt securities which have become due solely by the declaration of
acceleration, have been cured or waived. (Section 502)
No rescission shall affect any subsequent default or impair any right
consequent thereon.
The Holders of not less than a majority in principal amount of the
outstanding debt securities of any series may, on behalf of the Holders of all
the debt securities of the series and any related Coupons, waive any past
default under the applicable indenture with respect to the series and its
consequences, except a default:
(1) in the payment of the principal of or premium, if any or interest on any
Debt Security of the series or any related Coupon, or
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(2) in respect of a covenant or provision that cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of the
series affected thereby. (Section 513)
If an Event of Default with respect to debt securities of a particular
series occurs and is continuing, the Trustee will be under no obligation to
exercise any of its rights or powers under the applicable indenture at the
request or direction of any of the Holders of debt securities of the series,
unless the Holders shall have offered to the Trustee reasonable indemnity and
security against the costs, expenses and liabilities that might be incurred by
it in compliance with the request. (Section 602)
The Holders of a majority in principal amount of the outstanding debt
securities of the series have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
applicable indenture, or exercising any trust or power conferred on the Trustee
with respect to the debt securities of that series. The Trustee may refuse to
follow directions in conflict with law or the indenture that may involve the
Trustee in personal liability or may be unduly prejudicial to the other,
non-directing Holders. (Section 512)
MODIFICATION OR WAIVER
The indentures allow Newell and the Trustee, without the consent of any
Holders of debt securities, to enter into supplemental indentures for various
purposes, including:
- evidencing the succession of another entity to us and the assumption of
our covenants and obligations under the debt securities and the indenture
by this successor,
- adding to Newell's covenants for the benefit of the Holders,
- adding additional Events of Default for the benefit of the Holders,
- establishing the form or terms of any series of debt securities issued
under the supplemental indentures or curing ambiguities or inconsistencies
in the indentures, and
- making other provisions that do not adversely affect the interests of the
Holders of any series of debt securities in any material respect. (Section
901)
The indentures allow Newell and the Trustee, with the consent of the Holders
of not less than a majority in principal amount of the outstanding debt
securities of all affected series acting as one class, to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of the indentures or modifying the rights of the Holders of the debt
securities of the series. (Section 902) Without the consent of the Holders of
all the outstanding debt securities affected thereby, no supplemental indenture
may:
- change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any debt security;
- reduce the principal amount of, the rate of interest on, or any premium
payable upon the redemption of, any debt security;
- reduce the amount of the principal of any original issue discount security
that would be due and payable upon acceleration of the Maturity of the
debt security;
- change any Place of Payment where, or the currency, currencies or currency
unit or units in which, any debt security or any premium or interest
thereon is payable;
- impair the right to institute suit for the enforcement of any payment on
or after the Stated Maturity of the debt security or, in the case of
redemption, on or after the Redemption Date;
- affect adversely the right of repayment at the option of the Holder of any
debt security of the series;
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- reduce the percentage in principal amount of the outstanding debt
securities of any series, the consent of whose Holders is required for a
supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with various provisions of the indenture or
various defaults thereunder and their consequences provided for in the
indentures; or
- modify any of the foregoing described provisions. (Section 902)
MEETINGS
The indentures contain provisions for convening meetings of the Holders of
debt securities of any series for any action to be made, given or taken by
Holders of debt securities. The Trustee, Newell, and the Holders of at least 10%
in principal amount of the outstanding debt securities of a series may call a
meeting, in each case after notice to Holders of that series has been properly
given. (Section 1502)
Persons entitled to vote a majority in principal amount of the outstanding
debt securities of a series will constitute a quorum at a meeting of Holders of
debt securities of that series. Any resolution passed or decision taken at any
meeting of Holders of debt securities of any series that has been properly held
under the provisions of the indentures will bind all Holders of debt securities
of that series and related coupons. (Section 1503)
FINANCIAL INFORMATION
Newell will file with the Securities and Exchange Commission the annual
reports, quarterly reports and other documents required to be filed with the
Securities and Exchange Commission by Section 13(a) or 15(d) of the Exchange
Act, and will also file with the Trustee copies of these reports and documents
within 15 days after it files them with the Securities and Exchange Commission.
(Section 703)
DEFEASANCE
The indentures include provisions allowing us to be discharged from our
obligation on the debt securities of any series. (Section 1401) To be discharged
from our obligations on the debt securities, we would be required to deposit
with the Trustee or another trustee money or U.S. Government Obligations
sufficient to make all principal, premium (if any) and interest payments on
those debt securities. (Section 1404) If we make this defeasance deposit with
respect to your debt securities, we may elect either:
- to be discharged from all of our obligations on your debt securities,
except for our obligations to register transfers and exchanges, to replace
temporary or mutilated, destroyed, lost or stolen debt securities, to
maintain an office or agency in respect of the debt securities and to hold
moneys for payment in trust (Section 1402); or
- in the case of senior debt securities, to be released from restrictions
relating to liens and sale-leaseback transactions and, in the case of all
debt securities, to be released from other covenants as may be described
in the prospectus supplement relating to such debt securities. (Section
1403)
To establish the trust, Newell must deliver to the Trustee an opinion of our
counsel that the Holders of the debt securities will not recognize gain or loss
for Federal income tax purposes as a result of the defeasance and will be
subject to Federal income tax on the same amount, and in the same manner and at
the same times as would have been the case if the defeasance had not occurred.
(Section 1404 (5)) There may be additional provisions relating to defeasance
which we will describe in the prospectus supplement.
THE TRUSTEE
The Chase Manhattan Bank ("Chase") is the Trustee under the Senior Indenture
and the Subordinated Indenture. Chase is also the agent for the lenders, and a
lender, under a revolving credit facility with
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Newell which, as of the date hereof, permits an aggregate borrowing of up to
$1.2 billion, so long as the terms and conditions of this facility are
satisfied. Chase Securities, Inc., an affiliate of Chase, has from time to time
acted as an agent or underwriter with respect to distribution of our securities.
In addition, we and some of our affiliates maintain other banking and borrowing
arrangements with Chase, and Chase may perform additional banking services for,
or transact other banking business with, Newell in the future.
The Trustee may be deemed to have a conflicting interest for purposes of the
Trust Indenture Act of 1939 and may be required to resign as Trustee if:
- there is an Event of Default under the indenture; and
- one or more of the following occurs:
- the Trustee is a trustee for another indenture under which our
securities are outstanding;
- the Trustee is a trustee for more than one outstanding series of debt
securities under a single indenture;
- the Trustee is one of our creditors; or
- the Trustee or one of its affiliates acts as an underwriter or agent
for us.
Newell may appoint an alternative Trustee for any series of debt securities.
The appointment of an alternative Trustee would be described in the applicable
prospectus supplement.
GOVERNING LAW
The indentures and the debt securities are by their terms to be governed by
and their provisions construed under the internal laws of the State of New York.
(Section 112)
MISCELLANEOUS
Newell has the right at all times to assign any of its respective rights or
obligations under the indentures to a direct or indirect wholly-owned subsidiary
of Newell; provided, that, in the event of any assignment, Newell will remain
liable for all of their respective obligations. (Section 803) The indentures are
binding upon and inure to the benefit of the parties thereto and their
respective successors and assigns. (Section 109)
PARTICULAR TERMS OF THE SENIOR DEBT SECURITIES
The following description of the senior debt securities sets forth
additional general terms and provisions of the senior debt securities to which a
prospectus supplement may relate. The debt securities are described generally in
this prospectus under "Description of Debt Securities" above. The particular
terms of the senior debt securities offered by a prospectus supplement will be
described in the applicable prospectus supplement.
LIMITATION ON LIENS
The senior indenture provides that while the senior debt securities issued
under it or the related Coupons remain outstanding, Newell will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien of any kind upon any of its or their property or assets, now owned or
hereafter acquired, without directly securing all of the senior debt securities
equally and ratably with the obligation or liability secured by the Lien, except
for:
(1) Liens existing as of the date of the senior indenture;
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(2) Liens, including Sale and Lease-back Transactions, on any property
acquired, constructed or improved after the date of the senior
indenture, which are created or assumed contemporaneously with, or
within 180 days after, the acquisition or completion of this
construction or improvement, or within six months thereafter by a
commitment for financing arranged with a lender or investor within the
180-day period, to secure or provide for the payment of all or a
portion of the purchase price of the property or the cost of the
construction or improvement incurred after the date of the senior
indenture (or before the date of the indenture in the case of any
construction or improvement which is at least 40% completed at the date
of the indenture) or, in addition to Liens contemplated by clauses (3)
and (4) below, Liens on any property existing at the time of
acquisition of the property including acquisition through merger or
consolidation; provided, that any Lien other than a Sale and Lease-back
Transaction meeting the requirements of this clause does not apply to
any property theretofore owned by Newell or a Subsidiary other than, in
the case of any the construction or improvement, and theretofore
unimproved real property on which the property so constructed or the
improvement, is located;
(3) Liens existing on any property of a person at the time the person is
merged with or into, or consolidates with, Newell or a Subsidiary;
(4) Liens on any property of a person (including, without limitation,
shares of stock or debt securities) or its subsidiaries existing at the
time the person becomes a Subsidiary, is otherwise acquired by Newell
or a Subsidiary or becomes a successor to Newell under Section 802 of
the senior indenture;
(5) Liens to secure an obligation or liability of a Subsidiary to Newell or
to another Subsidiary;
(6) Liens in favor of the United States of America or any State, or any
department, agency or instrumentality or political subdivision of the
United States of America or any State, to secure partial progress,
advance or other payments under any contract or statute or to secure
any indebtedness incurred for the purpose of financing all or any part
of the purchase price or the cost of constructing or improving the
property subject to the Liens;
(7) Liens to secure tax-exempt private activity bonds under the Internal
Revenue Code of 1986, as amended;
(8) Liens arising out of or in connection with a Sale and Lease-back
Transaction if the net proceeds of the Sale and Lease-back Transaction
are at least equal to the fair value, as determined by the Board of
Directors, the Chairman of the Board, the Vice Chairman of the Board,
the President or the principal financial officer of Newell, of the
property subject to the Sale and Lease-back Transaction;
(9) Liens for the sole purpose of extending, renewing or replacing in whole
or in part indebtedness secured by any Lien referred to in the
foregoing clauses (1) to (8), inclusive, or in this clause (9);
provided, however, that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of indebtedness so
secured at the time of the extension, renewal or replacement, and that
this extension, renewal or replacement shall be limited to all or a
part of the property which secured the Lien so extended, renewed or
replaced plus improvements on the property;
(10) Liens arising out of or in connection with a Sale and Lease-back
Transaction in which the net proceeds of the Sale and Lease-back
Transaction are less than the fair value, as determined by the Board of
Directors, the Chairman of the Board, the Vice Chairman of the Board,
the President or the principal financial officer of Newell, of the
property subject to the Sale and Lease-back Transaction if Newell
provides in a Board Resolution that it shall, and if Newell covenants
that it will, within 180 days of the effective date of any the
arrangement or, in the case of (C) below, within six months thereafter
under a firm purchase commitment entered into
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within the 180-day period, apply an amount equal to the fair market
value as so determined of the property:
(A) to the redemption of senior debt securities of any series which are,
by their terms, at the time redeemable or the purchase and
retirement of senior debt securities, if permitted;
(B) to the payment or other retirement of Funded Debt, as defined
below, incurred or assumed by Newell which ranks senior to or pari
passu with the senior debt securities or of Funded Debt incurred or
assumed by any Subsidiary other than, in either case, Funded Debt
owned by Newell or any Subsidiary; or
(C) to the purchase of property other than the property involved in the
sale;
(11) Liens on accounts receivable and related general intangibles and
instruments arising out of or in connection with a sale or transfer by
Newell or the Subsidiary of the accounts receivable;
(12) Permitted Liens; and
(13) Liens other than those referred to in clauses (1) through (12) above
which are created, incurred or assumed after the date of the senior
indenture, including those in connection with purchase money mortgages,
Capitalized Lease Obligations and Sale and Lease-back Transactions,
provided that the aggregate amount of indebtedness secured by the
Liens, or, in the case of Sale and Lease-back Transactions, the Value
of the Sale and Lease-back Transactions, referred to in this clause
(13), does not exceed 15% of Consolidated Total Assets. (Section 1007)
The term "Capitalized Lease Obligations" means, as to any person, the
obligations of the person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real or personal property which
obligations are required to be classified and accounted for as capital lease
obligations on a balance sheet of the person under generally accepted accounting
principles and, for purposes of the senior indenture, the amount of the
obligations at any date shall be the capitalized amount of the obligations at
the date, determined according to generally accepted accounting principles.
(Section 101)
The term "Consolidated Total Assets" means the total of all the assets
appearing on the consolidated balance sheet of Newell and our Subsidiaries
determined according to generally accepted accounting principles applicable to
the type of business in which Newell and the Subsidiaries are engaged, and may
be determined as of a date not more than 60 days before the happening of the
event for which the determination is being made. (Section 101)
The term "Funded Debt" means any indebtedness which by its terms matures at
or is extendable or renewable at the sole option of the obligor without
requiring the consent of the obligee to a date more than 12 months after the
date of the creation of the indebtedness. (Section 101)
The term "Lien" means, as to any person, any mortgage, lien, collateral
assignment, pledge, charge, security interest or other encumbrance in respect of
or on, or any interest or title of any vendor, lessor, lender or other secured
party to or of the person under any conditional sale or other title retention
agreement or Capitalized Lease Obligation, purchase money mortgage or Sale and
Lease-back Transaction with respect to, any property or asset (including without
limitation income and rights thereto) of the person (including without
limitation capital stock of any Subsidiary of the person), or the signing by the
person and filing of a financing statement which names the person as debtor, or
the signing by the person of any security agreement agreeing to file, or
authorizing any other party as the secured party thereunder to file, any
financing statement. (Section 101)
The term "Permitted Liens" means:
- mechanics, materialmen, landlords, warehousemen and carriers liens and
other similar liens imposed by law securing obligations incurred in the
ordinary course of business which are not past
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due or which are being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established;
- Liens under workmen's compensation, unemployment insurance, social
security or similar legislation;
- Liens, deposits, or pledges to secure the performance of bids, tenders,
contracts (other than contracts for the payment of money), leases, public
or statutory obligations, surety, stay, appeal, indemnity, performance or
other similar bonds, or similar obligations arising in the ordinary course
of business;
- judgment and other similar Liens arising in connection with court
proceedings, provided the execution or other enforcement of the Liens is
effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings; and
- easements, rights of way, restrictions and other similar encumbrances
which, in the aggregate, do not materially interfere with the occupation,
use and enjoyment by Newell or any Subsidiary of the property or assets
encumbered thereby in the normal course of its business or materially
impair the value of the property subject thereto. (Section 101)
The term "Sale and Lease-back Transaction" means, with respect to any
person, any direct or indirect arrangement with any other person or to which any
other person is a party, providing for the leasing to the first person of any
property, whether now owned or hereafter acquired (except for temporary leases
for a term, including any renewal of the leases, of not more than three years
and except for leases between Newell and a Subsidiary or between Subsidiaries),
which has been or is to be sold or transferred by the first person to the other
person or to any person to whom funds have been or are to be advanced by the
other person on the security of the property. (Section 101)
The term "Subsidiary" means any corporation of which at the time of
determination Newell or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock. (Section 101)
The term "Value" means, with respect to a Sale and Lease-back Transaction,
as of any particular time, the amount equal to the greater of:
(a) the net proceeds from the sale or transfer of the property leased under
the Sale and Lease-back Transaction or
(b) the fair value in the opinion of the Board of Directors, the Chairman of
the Board, the Vice Chairman of the Board, the President or the principal
financial officer of Newell of the property at the time of entering into
the Sale and Lease-back Transaction,
in either case multiplied by a fraction, the numerator of which shall be equal
to the number of full years of the term of the lease remaining at the time of
determination and the denominator of which shall be equal to the number of full
years of the term, without regard to any renewal or extension options contained
in the lease. (Section 101)
The term "Voting Stock" means stock of a corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of the corporation.
(Section 101)
EVENTS OF DEFAULT
An "Event of Default" regarding any series of senior debt securities is any
one of the following events:
- default for 30 days in the payment of any interest installment when due
and payable;
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- default in the payment of principal or premium (if any) when due at its
stated maturity, by declaration, when called for redemption or otherwise;
- default in the making of any sinking fund payment when due;
- default in the performance of any covenant in the senior debt securities
or in the senior indenture for 60 days after notice to Newell by the
Trustee or by Holders of 25% in principal amount of the outstanding debt
securities of that series;
- events of bankruptcy, insolvency and reorganization of Newell or one of
its significant subsidiaries;
- an event of default in any mortgage, indenture or other instrument of
indebtedness of Newell which results in a principal amount in excess of
$10,000,000 being due and payable which remains outstanding longer than 30
days after written notice to Newell from the Trustee or from the Holders
of at least 25% of the outstanding debt securities of that series; and
- any other Event of Default provided with respect to that series of debt
securities. (Section 501)
We are required to file every year with the Trustee an officers' certificate
stating whether any default exists and specifying any default that exists.
(Section 1004)
PARTICULAR TERMS OF THE SUBORDINATED DEBT SECURITIES
The following description of the subordinated debt securities sets forth
additional general terms and provisions of the subordinated debt securities to
which a prospectus supplement may relate. The debt securities are described
generally under "Description of Debt Securities" above. The particular terms of
the subordinated debt securities offered by a prospectus supplement will be
described in the applicable prospectus supplement.
SUBORDINATION
The subordinated debt securities will be subordinated to the prior payment
in full of:
- the senior debt securities and all other unsecured and unsubordinated
indebtedness of Newell ranking equally with the senior debt securities;
and
- other indebtedness of Newell to the extent shown in the applicable
prospectus supplement.
EVENTS OF DEFAULT
An "Event of Default" regarding any series of subordinated debt securities
is any one of the following events:
- default for 60 days in the payment of any interest installment when due
and payable;
- default in the payment of principal or premium (if any) when due at its
stated maturity, by declaration, when called for redemption or otherwise;
- default in the making of any sinking fund payment when due;
- default in the performance of any covenant in the subordinated debt
securities or in the senior indenture for 90 days after notice to Newell
by the Trustee or by Holders of 25% in principal amount of the outstanding
debt securities of that series;
- events of bankruptcy, insolvency and reorganization of Newell or one of
its significant subsidiaries;
- an event of default in any mortgage, indenture or other instrument of
indebtedness of Newell which results in a principal amount in excess of
$15,000,000 being due and payable which remains
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outstanding longer than 30 days after written notice to Newell from the
Trustee or from the Holders of at least 25% of the outstanding debt
securities of that series;
- any other Event of Default provided with respect to that series of debt
securities. (Section 501)
We are required to file every year with the Trustee an officers' certificate
stating whether any default exists and specifying any default that exists.
(Section 1004)
DESCRIPTION OF CAPITAL STOCK
GENERAL
Our authorized capital stock consists of 800,000,000 shares of common stock
and 10,000,000 shares of preferred stock. As of July 7, 1999 there were
281,896,076 shares of common stock and no shares of preferred stock outstanding.
The outstanding shares of common stock are listed on the New York Stock Exchange
and the Chicago Stock Exchange.
COMMON STOCK
VOTING
Holders of common stock vote as a single class on all matters submitted to a
vote of the stockholders, with each share of common stock entitled to one vote.
DIVIDENDS
Holders of the common stock are entitled to receive the dividends that may
be declared from time to time by the Board of Directors out of funds legally
available therefor. The rights of holders of common stock to receive dividends
are subject to the prior rights of holders of any issued and outstanding
preferred stock that may be issued in the future.
OTHER PROVISIONS
Upon liquidation (whether voluntary or involuntary) or a reduction in
Newell's capital which results in any distribution of assets to stockholders,
the holders of the common stock are entitled to receive, pro rata according to
the number of shares held by each, all of the assets of Newell remaining for
distribution after payment to creditors and the holders of any issued and
outstanding preferred stock of the full preferential amounts to which they are
entitled. The common stock has no preemptive or other subscription rights and
there are no other conversion rights or redemption provisions with respect to
the shares.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is First Chicago Trust
Company of New York.
STOCK PURCHASE RIGHTS
Each outstanding share of common stock includes one common stock purchase
right (a "Right") provided under the Rights Agreement dated as of August 6, 1998
between Newell and First Chicago Trust Company of New York. Each Right entitles
the holder, until the earlier of October 31, 2008 or the redemption of the
Rights, to buy the number of shares of common stock having a market value of two
times the exercise price of $200, subject to adjustment under certain
circumstances. The Rights will be exercisable only if a person or group acquires
15% or more of voting power of Newell or announces a tender offer following
which it would hold 15% or more of Newell's voting power. The Rights held by the
15% stockholder would not be exercisable in this situation.
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Furthermore, if following the acquisition by a person or group of 15% or
more of Newell's voting power, Newell were acquired in a merger or other
business combination or 50% or more of its assets were sold, each Right, other
than Rights held by the 15% stockholder, would become exercisable for that
number of shares of common stock or securities of the surviving company in a
business combination having a market value of two times the exercise price of
the Right.
Newell may redeem the Rights at $0.001 per Right before the occurrence of an
event that causes the Rights to become exercisable for common stock.
As of the date of this prospectus, the Rights are not exercisable,
certificates representing the Rights have not been issued and the Rights
automatically trade with the shares of common stock. The Rights will expire on
October 31, 2008, unless earlier redeemed.
PREFERRED STOCK
Our Board of Directors may issue, without further authorization from our
stockholders, up to 10,000,000 shares of preferred stock in one or more series.
Our Board of Directors may determine at the time of creating each series:
- dividend rights and rates;
- voting and conversion rights;
- redemption provisions;
- liquidation preferences; and
- other relative, participating, optional or other special rights,
qualifications, limitations or restrictions of the series.
We will describe in a prospectus supplement relating to any series of
preferred stock being offered the terms of the preferred stock, which may
include:
(1) The maximum number of shares to constitute the series;
(2) Any annual dividend rate on the shares, whether the rate is fixed or
variable or both, the date or dates from which dividends will accrue,
whether the dividends will be cumulative and any dividend preference;
(3) Whether the shares will be redeemable and, if so, the price at and the
terms and conditions on which the shares may be redeemed;
(4) Any liquidation preference applicable to the shares;
(5) The terms of any sinking fund;
(6) Any terms and conditions on which the shares of the series shall be
convertible into, or exchangeable for, shares of any other capital stock;
(7) Any voting rights of the shares of the series; and
(8) Any other preferences or special rights or limitations on the shares of
the series.
Although Newell is not required to seek stockholder approval before
designating any future series of preferred stock, the Board of Directors
presently has a policy of seeking stockholder approval before designating any
future series of preferred stock with a vote, or convertible into stock having a
vote, in excess of 13% of the vote represented by all voting stock immediately
after the issuance, except for the purpose of (a) raising capital in the
ordinary course of business or (b) making acquisitions, the primary purpose of
which is not to effect a change of voting power.
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PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
As discussed above, Newell has adopted a Rights Agreement that provides
stockholders with rights to purchase shares of common stock or securities of
Newell (or of an acquiring company) at half of the market price under certain
circumstances involving a potential change in control of Newell that has not
been approved by the Board of Directors. The Rights Agreement is intended as a
means to protect the value of the stockholders' investment in Newell while
preserving the possibility of a fair acquisition bid. In addition, the Delaware
General Corporation Law provides, among other things, that any beneficial owner
of more than 15% of Newell's voting stock is prohibited, without the prior
approval of the Board of Directors, from entering into any business combination
with a company for three years from the date the 15% ownership interest is
acquired. Additionally, the "fair price provisions" of the Restated Certificate
of Incorporation require that specific proposed business combinations between
Newell and an "interested party," a beneficial owner of 5% or more of the voting
shares of Newell, must be approved by the holders of 75% of the voting shares,
unless certain fair price and procedural requirements are met or the business
combination is approved by the directors of Newell who are not affiliated with
the interested party. A vote of the holders of 75% of Newell's outstanding
voting stock is required to amend the fair price provisions of the Restated
Certificate of Incorporation.
Newell's Restated Certificate of Incorporation and By-Laws contain other
provisions which may be viewed as having an anti-takeover effect. The Restated
Certificate of Incorporation classifies the Board of Directors into three
classes and provides that vacancies on the Board of Directors are to be filled
by a majority vote of directors and that directors so chosen will hold office
until the end of the full term of the class in which the vacancy occurred. A
vote of the holders of 75% of Newell's outstanding voting stock is required to
amend these provisions. Under the Delaware General Corporation Law, directors of
Newell may only be removed for cause. The Restated Certificate of Incorporation
and the By-Laws also contain provisions that may reduce surprise and disruptive
tactics at stockholders' meetings. The Restated Certificate of Incorporation
provides that no action may be taken by stockholders except at an annual meeting
or special meeting, and does not permit stockholders to directly call a special
meeting of stockholders. A stockholder must give written notice to Newell of an
intention to nominate a director for election at an annual meeting 90 days
before the anniversary date of the immediately preceding annual meeting. Each of
these provisions tends to make a change of control of the Board of Directors
more difficult and time consuming.
PLAN OF DISTRIBUTION
We may sell the Securities:
- through underwriters,
- through agents,
- directly to a limited number of institutional purchasers or to a single
purchaser, or
- any combination of these.
The prospectus supplement will describe the terms of the offering of the
Securities, including the following:
- the name or names of any underwriters, dealers or agents;
- the purchase price and the proceeds we will receive from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation; and
- any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers.
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If underwriters are used in the sale, the securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The securities may be
either offered to the public through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate. The obligations of
the underwriters to purchase securities will be subject to conditions precedent
and the underwriters will be obligated to purchase all the securities if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
If dealers are used in the sale, we will sell the securities to the dealers
as principals. The dealers may resell the securities to the public at prices
determined by the dealers at the time of the resale.
We may sell securities directly or through agents we designate from time to
time. Any agent involved in the offer or sale of the securities in respect of
which this prospectus is delivered will be named, and any commissions payable by
us to that agent, will be described in the prospectus supplement.
The names of the underwriters, dealers or agents, as the case may be, and
the terms of the transaction will be set forth in the applicable prospectus
supplement.
Agents and underwriters may be entitled to indemnification by us against
civil liabilities arising out of this prospectus, including liabilities under
the Securities Act, or to contribution with respect to payments which the agents
or underwriters may be required to make relating to those liabilities. Agents,
dealers and underwriters may be customers of, engage in transactions with, or
perform services for, us in the ordinary course of business.
Our common stock will be approved for listing upon notice of issuance on the
New York Stock Exchange and the Chicago Stock Exchange. Other Securities may or
may not be listed on a national securities exchange. No assurances can be given
that there will be a market for the Securities.
LEGAL OPINION
Legal matters in connection with the Securities will be passed upon for
Newell by Schiff Hardin & Waite, Chicago, Illinois and for any underwriters,
dealers or agents by counsel named in the applicable prospectus supplement.
Schiff Hardin & Waite has advised Newell that, as of the date hereof, a member
of the firm participating in the representation of Newell in this offering owns
approximately 3,900 shares of common stock.
EXPERTS
The consolidated balance sheets as of December 31, 1998, 1997 and 1996, and
the consolidated statements of income, retained earnings and cash flows of
Newell Rubbermaid Inc. for each of the three years in the period ended December
31, 1998 incorporated in this prospectus by reference to Newell's Annual Report
on Form 10-K for the fiscal year ended December 31, 1998 as restated by Newell's
Current Report on Form 8-K dated June 30, 1999 have been audited by Arthur
Andersen LLP, independent public accountants, as set forth in their reports. In
those reports, that firm states that with respect to information relating to
Rubbermaid Incorporated its opinion is based on the reports of other independent
public accountants, namely KPMG Peat Marwick LLP. The financial statements and
supporting schedules referred to above have been included herein in reliance
upon the authority of those firms as experts in giving said reports.
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$779,500,00
NEWELL RUBBERMAID INC.
MEDIUM-TERM NOTES
------------------
PROSPECTUS SUPPLEMENT
------------------
, 1999
BANC ONE CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
GOLDMAN SACHS & CO.
MORGAN STANLEY DEAN WITTER
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth all expenses in connection with the
distribution of the debt securities, preferred stock, common stock and rights
being registered. All amounts shown below are estimates, except the
registration fee:
<TABLE>
<S> <C>
Registration fee of Securities and Exchange Commission...................................$208,500
Accountants' fees and expenses.............................................................40,000
Legal fees and expenses...................................................................100,000
Printing Registration Statement, prospectus and
exhibits and other printing expenses..............................................20,000
Trustee fees and expenses..................................................................10,000
Rating agency fees........................................................................155,000
Blue sky fees, expenses and legal fees......................................................5,000
Miscellaneous..............................................................................61,500
--------
TOTAL..................................................................$600,000
</TABLE>
Item 15. 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. Newell's Charter contains a provision which eliminates directors'
personal liability as set forth above.
The Charter and the Bylaws of Newell provide in effect that Newell
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
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<PAGE>
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.
Newell has in effect insurance policies for general officers' and
directors' liability insurance covering all of Newell's officers and
directors. Newell 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
Newell'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
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Agreement"), Newell 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
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. In addition, from and after the Effective Time, directors
and officers of Rubbermaid who become directors or officers of Newell will be
entitled to indemnification under the Charter and the Bylaws of Newell, as
the same may be amended from time to time in accordance with their terms and
applicable law, and to all other indemnity rights and protections as are
afforded to other directors and officers of Newell.
Additionally, for six years after the Effective Time, Newell 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 Newell may
substitute policies of Newell or its subsidiaries containing terms with
respect to coverage and amount no less favorable to such directors or
officers. Newell 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, Newell will be obligated to
obtain a policy with the best coverage available, in the reasonable judgment
of Newell's Board, for a cost up to but not exceeding such amount.
For six years after the Effective Time, Newell 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 16. Exhibits
The Exhibits filed herewith are set forth on the Index to Exhibits
filed as a part of this Registration Statement on page II-9 hereof.
Item 17. 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:
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<PAGE>
(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. Notwithstanding the foregoing,any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(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.
(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.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as party of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) and 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(5) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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 in the initial bona fide offering thereof.
(6) 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 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing on an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is
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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 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15
above, 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 Securities Act and is, therefore, unenforceable.
If 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 Securities Act and will be governed by the
final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
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-3 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 this 14th day of
July, 1999.
NEWELL RUBBERMAID INC.
(Registrant)
By: /s/ William T. Alldredge
-------------------------
William T. Alldredge
Vice President - Finance
Each person whose signature appears below appoints, John J. McDonough,
William T. Alldredge 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 amendments to this Registration Statement that either 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 either 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 either 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/John J. McDonough Chief Executive Officer (Principal July 14, 1999
- ----------------------------------------------- Executive Officer) and Director
John J. McDonough
/s/Thomas A. Ferguson, Jr. President and Chief Operating July 14, 1999
- ----------------------------------------------- Officer and Director
Thomas A. Ferguson, Jr.
/s/ Donald L. Krause Senior Vice President - Corporate July 14, 1999
- ----------------------------------------------- Controller (Principal Accounting
Donald L. Krause Officer)
<PAGE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William T. Alldredge Vice President - Finance July 14, 1999
- ----------------------------------------------- (Principal Financial Officer)
William T. Alldredge
/s/ William P. Sovey Chairman of the Board of July 14, 1999
- ----------------------------------------------- Directors
William P. Sovey
Vice Chairman of the Board of _________, 1999
- ----------------------------------------------- Directors
Wolfgang R. Schmitt
Director _________, 1999
- -----------------------------------------------
Tom H. Barrett
Director _________, 1999
- -----------------------------------------------
Scott S. Cowen
/s/ Alton F. Doody Director July 14, 1999
- -----------------------------------------------
Alton F. Doody
Director _________, 1999
- -----------------------------------------------
Thomas J. Falk
/s/ Daniel C. Ferguson Director July 14, 1999
- -----------------------------------------------
Daniel C. Ferguson
/s/ Robert L. Katz Director July 14, 1999
- -----------------------------------------------
Robert L. Katz
Director _________, 1999
- -----------------------------------------------
William D. Marohn
/s/ Elizabeth Cuthbert Millett Director July 14, 1999
- -----------------------------------------------
Elizabeth Cuthbert Millett
/s/ Cynthia A. Montgomery Director July 14, 1999
- -----------------------------------------------
Cynthia A. Montgomery
<PAGE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Allan P. Newell Director July 14, 1999
- -----------------------------------------------
Allan P. Newell
Director
- ----------------------------------------------- _________, 1999
Gordon R. Sullivan
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
INDEX EXHIBIT
- ----- -------
<C> <S>
1 Form of Distribution Agreement
4.1 Form of Fixed Rate Global Medium-Term Note
4.2 Form of Floating Rate Global Medium-Term Note
4.3 Indenture dated as of November 1, 1995 between Newell and The Chase
Manhattan Bank, as Trustee, relating to the Senior Debt Securities
(incorporated by reference to Exhibit 4.1 to Newell's Current Report
on Form 8-K dated May 3, 1996)
4.4 Form of Indenture dated as of November 1, 1995
between Newell and The Chase Manhattan Bank, as
Trustee, relating to the Subordinated Debt Securities
(incorporated by reference to Exhibit 4.4 to Newell's
Registration Statement on Form S-3, File No.33-64225)
5.1 Opinion of Schiff Hardin & Waite
12.1 Computation of Ratio of Earnings to Fixed Charges of Newell
(incorporated by reference to Newell's Current Report on Form 8-K
dated June 30, 1999)
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Schiff Hardin & Waite (contained in their opinion filed as
Exhibit 5.1)
24.1 Powers of attorney (set forth on the signature page of this
Registration Statement)
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Trustee for Senior Indenture.
</TABLE>
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 1
NEWELL RUBBERMAID INC.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
_______________, 1999
BANC ONE CAPITAL MARKETS, INC.
One First National Plaza
Mail Suite 0595, 8th Floor
Chicago, Illinois 60670
CHASE SECURITIES INC.
One Chase Manhattan Plaza
New York, New York 10081
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway, 2nd Floor
New York, New York 10036
Dear Sirs:
Newell Rubbermaid Inc., a Delaware corporation (formerly known
as Newell Co., the "COMPANY"), Banc One Capital Markets, Inc. (formerly known as
First Chicago Capital Markets, Inc., "BANC ONE"), Chase Securities Inc.
("CHASE") and Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") are parties
to that certain Distribution Agreement (as amended, supplemented or otherwise
modified, the "PRIOR AGREEMENT") dated May 3, 1996 relating to the issue and
sale by the Company of its Medium-Term Notes, Series A, Due Nine Months or More
from Date of Issue (the "SERIES A NOTES").
The parties hereto desire that the Prior Agreement be, and
hereby is, amended and restated in the form of this Agreement in order, among
other things, to add Goldman, Sachs & Co. ("Goldman Sachs;" each of Chase,
Morgan Stanley, Banc One and Goldman Sachs being an "AGENT" and, collectively,
the "AGENTS") as a party and to cover the issue and sale of Series B Notes (as
defined below).
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 2
This Agreement confirms the understanding and agreement of the
parties hereto with respect to (a) Series A Notes which have not previously been
issued and sold (the "REMAINING SERIES A NOTES"), and (b) the Company's
Medium-Term Notes, Series B, Due Nine Months or More from Date of Issue (the
"SERIES B NOTES," the Remaining Series A Notes and the Series B Notes being,
collectively, the "NOTES").
The Notes are to be issued pursuant to the senior indenture
(the "INDENTURE") dated as of November 1, 1995 between the Company and The Chase
Manhattan Bank, as trustee (the "TRUSTEE"). As of the date hereof, the Company
has authorized the issuance and sale of up to U.S. $779,500,000 aggregate
initial offering price (or its equivalent, based upon the applicable exchange
rate at the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) of Notes to
or through the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold to or through the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
The Company has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No. 333-__________)
for the registration of securities, including the Notes, under the Securities
Act of 1933, as amended (the "1933 ACT"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 ACT REGULATIONS"). Such registration statement has been
declared effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 ACT"). Such registration
statement (and any further registration statements which may be filed by the
Company for the purpose of registering additional Notes and in connection with
which this Agreement is included or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplement
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
ACT"), or the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in connection
with the offering of the Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "PROSPECTUS" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and
conditions stated herein, the Company hereby appoints each Agent as its agent
for the purpose of soliciting purchases of the
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 3
Notes from the Company by others and agrees that, except as otherwise
contemplated herein, whenever the Company determines to sell Notes directly to
an Agent as principal for resale to others, it will enter into a Terms Agreement
(hereafter defined) relating to such sale in accordance with the provisions of
Section 3(b) hereof. The Company agrees that, during the period the Agents are
acting as the Company's agents hereunder, the Company will not appoint any other
agent or agents to act on its behalf, or to assist it, in the placement of Notes
unless and until such agent or agents shall have agreed to be bound by the terms
and provisions of this Agreement or a separate agreement substantially similar
hereto. The Company reserves the right to (i) offer Notes for sale otherwise
than to or through an Agent and (ii) sell (and solicit and accept offers to
purchase) Notes directly on its own behalf in those jurisdictions in which it is
authorized to do so. In the case of any such sale not resulting from a
solicitation made by any Agent, no commission will be payable to an Agent with
respect to such sale.
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT
OFFERS. Upon receipt of instructions from the Company, each Agent will use its
reasonable efforts to solicit offers for purchases of such initial offering
price of the Notes (other than Notes, if any, being purchased by such Agent as
principal in accordance with Section 3(b) below) as the Company and such Agent
shall agree upon from time to time during the term of this Agreement, it being
understood that the Company shall not approve the solicitation of offers for the
purchase of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the aggregate initial offering price
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale, under the Registration Statement. Each applicable Agent will
communicate to the Company, orally or in writing, each offer to purchase Notes,
other than those offers rejected by such Agent. Each applicable Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes through it, as a whole or in part, and any such rejection
shall not be deemed a breach of such Agent's agreement contained herein. The
Company may accept or reject any proposed purchase of the Notes, in whole or in
part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting offers for the purchase of the Notes as agent of the Company, the
applicable Agent shall act solely as agent for the Company and not as principal.
Such Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but such Agent shall not have any
liability to the Company in the event any such purchase is not consummated for
any reason. If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer to purchase Notes has been solicited by an Agent on an
agency basis and accepted by the Company, the Company shall (i) hold such Agent
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay to such Agent
any commission to which it
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 4
would be entitled in connection with such sale. None of the Agents shall have
any obligation to purchase Notes from the Company as principal, but one or more
Agents may agree from time to time to purchase Notes as principal. Any such
purchase shall be made in accordance with Section 3(b) hereof.
(d) RELIANCE. The Company and the Agents agree that any
Notes purchased by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as agent shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Company contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Agents as of the date hereof, as of the date of
each acceptance by the Company of an offer for the purchase of Notes (whether
through an Agent as agent or to an Agent as principal), as of the date of each
delivery of Notes (whether through an Agent as agent or to an Agent as
principal) (the date of each such delivery to an Agent as principal being
hereafter referred to as a "SETTLEMENT DATE"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented (each
of the times referenced above being referred to herein as a "REPRESENTATION
DATE") as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Indenture and the Notes; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a "MATERIAL ADVERSE EFFECT").
(ii) SUBSIDIARIES. Each subsidiary of the Company
which is a significant subsidiary as defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act (each a "SIGNIFICANT SUBSIDIARY") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 5
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not have a Material Adverse Effect; and all
of the issued and outstanding capital stock, owned directly or indirectly by the
Company, of each Significant Subsidiary has been duly authorized and validly
issued is fully paid and non-assessable and is so owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At
the time the Registration Statement became effective, the Registration Statement
and the Indenture complied, and as of each Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the SEC under the
1939 Act (the "1939 ACT REGULATIONS"). The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any amendment
to the Registration Statement becomes effective and any Annual Report on Form
10-K is filed by the Company with the SEC and as of each Representation Date,
will not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of the date hereof does not, and as
of each Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in this
subsection shall not apply, with respect to any Agent, to statements in or
omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by such
Agent with respect to itself expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which constitutes the
Trustee's Statement of Eligibility under the 1939 Act (Form T-1).
(iv) INCORPORATED DOCUMENTS. The documents
incorporated or deemed to be incorporated by reference in the Prospectus, at the
time they were filed or amended or hereafter are filed with the SEC, complied or
when so filed will comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 ACT REGULATIONS") and, when read together and with the
other information in the Prospectus, at the date hereof, at the date of the
Prospectus and at each Representation Date did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not misleading.
(v) ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included or incorporated by
reference in the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 6
(vi) FINANCIAL STATEMENTS. The financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements have
been prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS
AGREEMENT, THE INDENTURE AND THE NOTES. This Agreement has been duly and validly
authorized, executed and delivered by the Company; the Indenture has been duly
and validly authorized, executed and delivered by the Company and is a valid and
binding obligation of the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
enforcement of creditors' rights generally or by general equity principles; the
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, the Indenture and the Officers'
Certificate with respect to the Notes heretofore delivered by the Company to the
Trustee (the "OFFICERS' CERTIFICATE") against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms Agreement, the
Notes will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights generally or by
general equity principles; the Notes and the Indenture will be substantially in
the form heretofore delivered to the Agents and conform in all material respects
to all statements relating thereto contained in the Prospectus; and each holder
of the Notes will be entitled to the benefits provided by the Indenture.
(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS.
Since the respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and (b)
there have been no transactions entered into by the Company or any of its
subsidiaries that are material to the Company and its subsidiaries considered as
one enterprise, other than those in the ordinary course of business.
(ix) NO DEFAULTS. Neither the Company nor any of
its Significant Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage,
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 7
loan agreement, note, lease or other instrument to which it is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its Significant Subsidiaries is subject, except when
such default would not have a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the Notes, the
compliance by the Company with its obligations hereunder and thereunder and the
consummation of the transactions contemplated herein, therein and pursuant to
any applicable Terms Agreement will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any such subsidiary is
subject, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation or
administrative or court order or decree of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the Company.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as may
be set forth in the Registration Statement, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which will, in the opinion
of the Company, result in any Material Adverse Effect or will materially and
adversely affect the consummation of this Agreement; and there are no contracts
or documents of the Company or any of its subsidiaries which are required to be
filed or incorporated by reference as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so filed or
incorporated by reference.
(xi) NO AUTHORIZATION, APPROVAL OR CONSENT
REQUIRED. No authorization, approval, consent, order or decree of any court or
governmental agency or body including the SEC is required for the consummation
by the Company of the transactions contemplated by this Agreement or in
connection with the sale of the Notes hereunder, except such as have been
obtained or rendered, as the case may be, or as may be required under state
securities ("BLUE SKY") laws.
(xii) INAPPLICABILITY OF INVESTMENT COMPANY ACT OF
1940. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xiii) COMMODITY EXCHANGE ACT. The Notes, when
issued, authenticated and delivered pursuant to the provisions of this Agreement
and the Indenture, will be excluded or exempted under the provisions of the
Commodity Exchange Act, unless the Company has otherwise notified the Agent to
or through which such Notes will be sold prior to any offer thereof.
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 8
(xiv) RATINGS. As of the date hereof, the senior
unsecured long term debt of the Company is rated ["A2"] by Moody's Investors
Service, Inc. ("MOODY'S") and ["A"] by Standard & Poor's Ratings Group ("S&P").
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by
any director or officer of the Company and delivered to an Agent or to counsel
for an Agent in connection with an offering of Notes or the sale of Notes to
such Agent as principal shall be deemed a representation and warranty by the
Company to such Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENTS. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees, when acting as agent of the
Company, to use its reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes sold through them
as agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised the Agents
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company in a completed transaction (subject to Section
1(c)(ii) hereof) as a result of a solicitation made by such Agent as set forth
in Schedule A hereto. The Company will not be required to pay a commission to
any Agent in connection with any sale of Notes made by the Company directly to
one or more investors which did not result from a solicitation made by such
Agent.
(b) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an
Agent and the Company, Notes shall be purchased by one or more Agents as
principal in accordance with terms agreed upon by such Agent or Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in EXHIBIT A hereto and be agreed upon orally,
with written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 9
from the Company as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent to
the applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any other broker or dealer in connection with the resale of the
Notes purchased by them as principal and may allow all or any portion of the
discount received in connection with such purchases from the Company to such
brokers and dealers. At the time of each purchase of Notes by one or more Agents
as principal, such Agent or Agents shall specify the requirements for the
stand-off agreement, officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES, ETC. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Agents and the Company (the "PROCEDURES"). The Agents and the
Company agree to perform, and the Company shall direct the Trustee to perform,
the respective duties and obligations specifically provided to be performed by
them in the Procedures. A copy of the Procedures in effect as of the date of
this Agreement is attached hereto as EXHIBIT B.
The purchase price, interest rate or formula, maturity date
and other terms of the Notes shall be agreed upon by the Company and the
applicable Agent and set forth in a Pricing Supplement (as defined in Section
4(b) hereof) to be prepared following each acceptance by the Company of an offer
for the purchase of Notes. Except as may be otherwise provided in such
supplement to the Prospectus, the Notes will be issued in denominations of U.S.
$1,000 or any larger amount that is an integral multiple of U.S. $1,000. All
Notes sold to or through the Agents will be sold at 100% of their principal
amount, unless otherwise agreed to by the Company and the applicable Agent.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the
Agents immediately of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the SEC for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) the receipt of any comments
from the SEC with respect to the Registration Statement or the Prospectus,
including any document incorporated by reference therein, (iv) any request by
the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (v) the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment. In addition, after learning of either such events, the Company
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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Page 10
will forthwith notify the Agents if the rating assigned to any debt securities
of the Company by any nationally recognized securities rating agency shall have
been lowered, or if any such rating agency shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will
give the Agents notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than a supplement providing solely for the specification of
the interest rates or formulas, maturity dates, issuance prices, redemption
terms and prices, if any, and other terms of Notes sold pursuant hereto (any
such supplement being hereinafter referred to as a "PRICING SUPPLEMENT")),
whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or used a reasonable time in
advance of such proposed filing or use, as the case may be.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE
PROSPECTUS. The Company will deliver to each Agent as many signed and conformed
copies of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as each Agent may
reasonably request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as each Agent shall reasonably request
so long as the requesting Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes. The
Registration Statement and the Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will
prepare, with respect to any Notes to be sold to or through any Agent pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by such Agent and will file such Pricing Supplement pursuant
to Rule 424(b) under the 1933 Act within the time period prescribed therefor
under Rule 424(b).
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except
as otherwise provided in subsection (l) of this Section, if at any time during
the term of this Agreement any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Agents or counsel
for the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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Page 11
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes an Agent
may then own as principal, and the Company will promptly prepare and file with
the SEC such amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements. For purposes of this subsection, the
Company will furnish such information with respect to itself to the Agents,
counsel for the Agents and counsel for the Company as may be necessary for
counsel for the Agents and counsel for the Company to be aware of and to consult
with the Agents and the Company with respect to the need to amend or supplement
the Prospectus, and shall furnish such further information as the Agents may
from time to time reasonably request.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL
INFORMATION. Except as otherwise provided in subsection (l) of this Section,
promptly after the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall inform
the Agents of the filing and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference capsule financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations (if any) as shall be required by the 1933 Act or
the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL
INFORMATION. Except as otherwise provided in subsection (l) of this Section,
promptly on or prior to the date on which there shall be released to the general
public financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall cause
the Registration Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, to
include or incorporate by reference such audited financial statements and the
report or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) EARNINGS STATEMENTS. The Company will timely file
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11 (a) of the 1933 Act.
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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(i) BLUE SKY QUALIFICATIONS. The Company will endeavor,
in cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will promptly
advise the Agents of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any such state
or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(j) 1934 ACT FILINGS. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the SEC pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) STAND-OFF AGREEMENT. If specified by the applicable
Agent or Agents in connection with a purchase of Notes from the Company, as
principal, between the date of the agreement to purchase such Notes and the
Settlement Date with respect to such purchase, the Company will not, without the
prior written consent of such Agent or Agents, offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than the Notes that
are to be sold pursuant to such agreement and commercial paper in the ordinary
course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall
not be required to comply with the provisions of subsections (e), (f) or (g) of
this Section or subsections (c)(ii) and (d)(ii) of Section 7 during any period
from the time the Agents shall have been instructed by the Company to suspend
solicitation of purchases of the Notes in their capacity as agents to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or an Agent shall subsequently purchase Notes from the Company as
principal; provided, however, that compliance with such subsections shall be
required for any portion of such period during which any of the Agents shall
hold any Notes as principal purchased pursuant to this Agreement with the
intention of resale and shall so notify the Company when the distribution
of such Notes is completed.
(m) USE OF PROCEEDS. The Company will use the net
proceeds received by it from the issuance and sale of the Notes in the manner
specified in the Prospectus.
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Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 13
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of any Agent to solicit offers to purchase the
Notes as agent of the Company, the obligations of any purchasers of the Notes
sold through an Agent as agent, and any obligation of an Agent to purchase Notes
from the Company as principal, will be subject to the accuracy of the
representations and warranties on the part of the Company herein contained and
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof relating to such Notes,
to the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions precedent
(the first date on which all of the following additional conditions precedent
are satisfied being the "EFFECTIVE DATE"):
(a) LEGAL OPINIONS. The Agents shall have received the
following legal opinions, dated as of the Effective Date, and otherwise in form
and substance satisfactory to the Agents:
(1) OPINION OF GENERAL COUNSEL OF COMPANY. The
opinion of the General Counsel of the Company to the effect that:
(i) Each Significant Subsidiary is
validly existing in good standing under the laws of the jurisdiction of its
organization and, to the best of such counsel's knowledge, each of the Company
and each Significant Subsidiary is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect.
(ii) Each Significant Subsidiary has the
power and authority to own, lease and operate its properties and to conduct its
business as currently conducted and as described in the Prospectus.
(iii) All of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and except for directors'
qualifying shares, if any, is owned directly or indirectly by the Company, free
and clear of any recorded security interest, lien, encumbrance or claim.
(iv) To the best of such counsel's
knowledge, there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Prospectus, other than
those disclosed therein.
(v) The execution and delivery by the
Company of this Agreement, the Indenture and the Notes, the performance by the
Company of its agreements herein and therein
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
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and the incurrence by the Company of the indebtedness to be evidenced by the
Notes will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary under any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any Significant Subsidiary is
a party or by which any of them are bound or to which any property or assets of
the Company or any such Significant Subsidiary is subject.
(2) OPINION OF COMPANY COUNSEL. The opinion of
Schiff Hardin & Waite, counsel to the Company, to the effect that:
(i) The Company and each Significant
Subsidiary has been duly incorporated (or, in the case of a Significant
Subsidiary that is not a corporation, duly formed or organized, as the case may
be) and is validly existing in good standing under the laws of the jurisdiction
of its incorporation (or, if applicable, formation or organization).
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement, the Indenture and the Notes.
(iii) The Company is duly qualified as a
foreign corporation to transact business and is in good standing under the laws
of the State of Illinois.
(iv) This Agreement has been duly and
validly authorized, executed and delivered by the Company.
(v) The Indenture has been duly and
validly authorized, executed and delivered by the Company and (assuming the
Indenture has been duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to or affecting enforcement of
creditors' rights generally, or by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(vi) The forms of the Notes filed as
exhibits to the Registration Statement comply with the requirements of the
Indenture applicable thereto; the Notes have been duly and validly authorized
for issuance, offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement, the
Indenture and the Officers' Certificate against payment of the consideration
therefor, will constitute valid and legally
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Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 15
binding obligations of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws relating
to or affecting enforcement of creditors' rights generally or by general equity
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law); and each holder of Notes will be entitled to the benefits of
the Indenture.
(vii) The information in the Prospectus
under the captions "Description of Notes," "Description of Debt Securities,"
"Particular Terms of the Senior Debt Securities," "Particular Terms of the
Subordinated Debt Securities," "Description of Capital Stock" and "United States
Federal Income Taxation," to the extent that it constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal conclusions, has
been reviewed by such counsel and is correct in all material respects.
(viii) The Indenture is qualified under
the 1939 Act.
(ix) The Registration Statement is
effective under the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
SEC.
(x) At the time the Registration
Statement became effective, the Registration Statement (other than the financial
statements and related schedules and other financial information included or
incorporated by reference therein) complied as to form in all material respects
with the requirements of the 1933 Act, the 1939 Act and the regulations under
each of those Acts.
(xi) The execution, delivery and
performance by the Company of this Agreement, the Indenture and the Notes, the
performance by the Company of its agreements herein and therein and the
incurrence by the Company of the indebtedness to be evidenced by the Notes will
not conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any Material Contract nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or administrative or court order
or decree known to such counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator having jurisdiction
over the Company. For purposes of the preceding sentence, "MATERIAL CONTRACT"
shall mean each indenture, loan agreement, contract, agreement or arrangement,
as each shall have been amended to the date of such opinion, filed as an exhibit
to, or incorporated by reference in, the most recent Annual Report to the SEC on
Form 10-K
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 16
of the Company or any report filed since the date of such report with the SEC
under Section 13 of the 1934 Act.
(xii) To the best of such counsel's
knowledge, there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be described or
referred to in the Registration Statement or Prospectus or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(xiii) No authorization, consent,
approval, order or decree of any court or governmental agency or body including
the SEC is required for the consummation by the Company of the transactions
contemplated by this Agreement or in connection with the sale of the Notes
hereunder, except such as may be required under the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations or state securities laws.
(xiv) Each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus (other than the
financial statements and related schedules and other financial information
included or incorporated by reference therein) complied when filed or, if
amended, when so amended, as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(3) OPINION OF COUNSEL TO THE AGENTS. The
opinion of Brown & Wood LLP, counsel to the Agents, covering the matters
referred to in subparagraph (2) under the subheadings (i) and (v) to (xi)
(except the caption "United States Federal Income Taxation" under (viii),
inclusive, above.
(4) DISCLOSURE. In giving their opinions
required by subsections (a)(1), (a)(2) and (a)(3) of this Section, the General
Counsel of the Company, Schiff Hardin & Waite and Brown & Wood LLP shall each
additionally state that nothing has come to their attention that leads them to
believe that the Registration Statement (other than the financial statements and
related schedules and other financial information included or incorporated by
reference therein), at the time it became effective (or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed by the
Company with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the time of
the most recent such filing, as the case may be) and at the date hereof, or (if
such opinion is being delivered in connection with the purchase of Notes from
the Company by one or more Agents as principal pursuant to Section 7(c) hereof)
at the date of any agreement by any Agent or Agents to purchase Notes from the
Company as principal and at the Settlement Date with respect thereto, as the
case may be, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading
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Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 17
or that the Prospectus (other than the financial statements and related
schedules and other financial information included or incorporated by reference
therein), at the date hereof (or, if such opinion is being delivered in
connection with the purchase of Notes from the Company by one or more Agents as
principal pursuant to Section 7(c) hereof, at the date of any agreement by such
Agent or Agents to purchase Notes from the Company as principal and at the
Settlement Date with respect thereto, as the case may be) (included or) includes
an untrue statement of a material fact or (omitted or) omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Company hereby requests that counsel render the opinions
provided for in Sections 5(a)(l) and 5(a)(2) of this Agreement, and any opinions
called for by Section 7(c) of this Agreement, on its behalf.
(b) OFFICER'S CERTIFICATE. On the Effective Date and on
each Settlement Date with respect to the purchase of Notes from the Company by
one or more Agents as principal, there shall not have been since the respective
dates as of which information is given in the Registration Statement and the
Prospectus or since the date of the agreement by such Agent or Agents to
purchase such Notes from the Company as principal, any material adverse change
in the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and the
Agents shall have received a certificate or certificates of the chief financial
officer, the treasurer or any assistant treasurer of the Company, substantially
in the form of APPENDIX I hereto and dated as of a date that is satisfactory to
the Agents, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties of the Company contained in
Section 2 hereof are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on its
part to be performed, complied with or satisfied hereunder at or prior to the
date of such certificate, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC.
(c) COMFORT LETTER. The Agents shall have received a
letter from Arthur Andersen LLP, dated as of the Effective Date, and otherwise
in form and substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements and supporting schedule(s) of the Company and its subsidiaries
examined by them and included or incorporated by
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 18
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures,
not constituting an audit, including a reading of the latest available interim
financial statements of the Company and its indicated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has been issued,
inquiries of and discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters with respect to
any unaudited consolidated financial statements included in the Registration
Statement and Prospectus and the latest available interim unaudited financial
statements of the Company and its subsidiaries, and such other inquiries and
procedures as may be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their attention that caused them to
believe that: (A) any material modifications should be made to the unaudited
consolidated financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and Prospectus for
them to be in conformity with generally accepted accounting principles in the
United States, (B) any unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations, (C) any other unaudited financial statement data included
in the Registration Statement and Prospectus do not agree with the corresponding
items in the unaudited financial statements from which such data were derived or
any such unaudited financial statement data were not determined on a basis
substantially consistent with the corresponding amounts in the audited financial
statements included in the Registration Statement and Prospectus, (D) any
unaudited pro forma financial statements included in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation of those
statements, or (E) at a specified date not more than five days prior to the date
of such letter, there was any change in the consolidated capital stock or any
increase in consolidated long-term debt of the Company and its subsidiaries
(other than changes resulting from the exercise of stock options granted under
the Company's existing stock option plans or drawings under the Company's
existing revolving credit agreements with The Chase Manhattan Bank and certain
other banks referred to therein) or any decrease in the consolidated net assets
of the Company and its subsidiaries, in each case as compared with the amounts
shown on the most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and Prospectus or, during the period from the date of such balance sheet to a
specified date not more than five days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues or net income of the Company and its
subsidiaries, except in each such case as set forth in or contemplated by the
Registration Statement and Prospectus or
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Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
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except for such exceptions enumerated in such letter as shall have been agreed
to by the Agents and the Company.
(iv) In addition to the examination referred to
in their report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and Prospectus and which are specified by the Agents, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(d) RATINGS. With respect to the purchase of any Notes by
or through an Agent, neither Moody's nor S&P shall have lowered its rating as to
such Notes since the date on which the Company agreed to issue and sell such
Notes nor, since such date, shall either of such rating agencies have publicly
announced that it has under surveillance or review with possible negative
implications its rating of the Notes.
(e) OTHER DOCUMENTS. On the date hereof and on each
applicable Settlement Date, counsel to the Agents shall have been furnished with
such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be reasonably satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by an Agent (as to itself) by notice to the Company (in writing, or
orally if promptly confirmed in writing) at any time and any such termination
shall be without liability of any party to any other party, except that the
covenant regarding the provision of an earnings statement set forth in Section
4(h) hereof, the provisions concerning payment of expenses set forth in Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 11 hereof and the provisions
concerning governing law and forum set forth in Section 14 hereof shall remain
in effect.
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Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
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SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made
by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, the applicable Agent shall promptly notify the
Company and deliver the Note to the Company, and, if such Agent has theretofore
paid the Company for such Note, the Company will promptly return such funds to
the Agent. If such failure occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse the Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by the Company of an offer for the purchase of Notes (whether to one
or more Agents as principal or through an Agent as agent), and each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent),
shall be deemed to be an affirmation that the representations and warranties of
the Company contained in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his or its agent, or to the Agents, of the Note or Notes
relating to such acceptance or sale, as the case may be, as though made at and
as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that
(i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement, or an amendment or supplement
providing solely for the inclusion of additional financial information and,
unless an Agent shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes), or (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
one or more Agents as principal, the Company shall furnish or cause to be
furnished forthwith to the Agents (or, in the case of clause (ii), such Agent or
Agents as the case may be) a certificate of the chief financial officer, the
treasurer or any assistant treasurer of the Company, dated the date of filing
with the SEC of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form satisfactory to
such Agents to the effect that the statements contained in the certificate
referred to in Section 5(b)
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 21
hereof which were last furnished to such Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that
(i) the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement or an amendment or supplement
providing solely for the inclusion of additional financial information, and,
unless an Agent shall otherwise specify, other than by an amendment or
supplement which relates exclusively to an offering of debt securities other
than the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K or
Quarterly Report on Form 10-Q, unless an Agent shall otherwise specify) or (iii)
(if required in connection with the purchase of Notes from the Company by one or
more Agents as principal) the Company sells Notes to one or more Agents as
principal, the Company shall furnish or cause to be furnished forthwith to the
Agents (or in the case of clause (iii), such Agent or Agents as the case may be)
the written opinions of the General Counsel of the Company and Schiff Hardin &
Waite, counsel to the Company, or other counsel satisfactory to such Agents,
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form and substance satisfactory to such Agents, of the same tenor as the
opinions referred to in Section 5(a)(l) and (2) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion or opinions, counsel last furnishing such opinion or opinions to such
Agents shall furnish such Agents with a letter or letters substantially in the
form of APPENDIX II hereto to the effect that such Agents may rely on such last
opinion or opinions to the same extent as though it was or they were dated the
date of such letter or letters authorizing reliance (except that statements in
such last opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time
that (i) the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, (ii) there is filed
with the SEC any document incorporated by reference into the Prospectus which
contains additional financial information (other than any current Report on Form
8-K or Quarterly Report on Form 10-Q, unless an Agent shall otherwise specify)
or (iii) (if required in connection with the purchase of Notes from the Company
by one or more Agents as principal) the Company sells Notes to one or more
Agents as principal, the Company shall cause its outside public accountants
forthwith to furnish the Agents (or in the case of clause (iii), such Agent or
Agents as
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 22
the case may be) a letter, dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to such Agents, of the
same tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clause (iii) of
said Section 5(c) and, as to audited financial statements only, clause (iv) of
said Section 5(c), in each case with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include (or
incorporate by reference) financial information as of and for a fiscal quarter,
such outside public accountants may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement (or so
incorporated) unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of such Agents, such letter should cover such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by the Agents),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 23
body, commenced or threatened or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company with
respect to an Agent by an Agent expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto), or made in reliance upon the Trustee's Statement of Eligibility under
the 1939 Act filed as an exhibit to the Registration Statement.
(b) INDEMNIFICATION OF COMPANY. Each Agent severally
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company with respect to an
Agent by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 8(a) hereof, counsel to the indemnified parties shall be selected by
the applicable Agent(s) and, in the case of parties indemnified pursuant to
Section 8(b) hereof, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 24
No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened or, any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason unavailable or insufficient, the Company and the Agents shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
the Agents, as incurred, in such proportions that each Agent is responsible for
that portion represented by the percentage that the total commissions and
underwriting discounts received by such Agent bears to the total sales price
received by the Company, in each case from the sale of Notes to or through such
Agent to the date of such liability, and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Agent within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as such Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing or other reproduction,
issuance and delivery of the Notes, including any fees and expenses relating to
the use of book-entry Notes;
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 25
(d) The fees and disbursements of the Company's
accountants and counsel, of the Trustee and its counsel, and of any calculation
agent;
(e) The reasonable fees and disbursements of counsel to
the Agents incurred in connection with the establishment of the program relating
to the Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing or other reproduction and
delivery to the Agents of copies of the Indenture and all supplements and
amendments thereto;
(i) Any fees charged by rating agencies for the rating of
the Notes;
(j) The fees and expenses, if any, incurred with respect
to any filing with the National Association of Securities Dealers, Inc. or
listing on a securities exchange;
(k) Any advertising and other out-of-pocket expenses of
the Agents incurred with the approval of the Company;
(l) The cost of providing any CUSIP or other
identification numbers for the Notes; and
(m) The fees and expenses of any Depositary (as defined
in the Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of an Agent or any
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 26
controlling person of such Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement
(excluding any agreement by one or more Agents to purchase Notes from the
Company as principal) may be terminated for any reason, at any time by either
the Company or by an Agent with regard to such Agent upon the giving of 30 days'
written notice of such termination to each other party hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS
PRINCIPAL. The Agent or Agents may terminate any agreement by such Agent or
Agents to purchase Notes from the Company as principal, immediately upon notice
to the Company, at any time prior to the Settlement Date relating thereto (i) if
there shall have been, since the date of such agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if, since the date of such
agreement, there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which is such as to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (iii) if,
since the date of such agreement, trading in any securities of the Company shall
have been suspended by the SEC or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by either of said Exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities or if a banking moratorium shall have
been declared by the relevant authorities in the country or countries of origin
of any foreign currency or currencies in which the Notes are denominated or
payable, or (iv) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of such
agreement shall have been lowered since that date or if any such rating agency
shall have publicly announced since such date that it has under surveillance or
review, with possible negative implications, its rating of any debt securities
of the Company, or (v) if there shall have come to such Agent's attention any
facts that would cause such Agent to reasonably believe that the Prospectus, at
the time it was required to be delivered to a purchaser of Notes, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time of such delivery, not misleading.
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 27
(c) GENERAL. In the event of any such termination, no
party will have any liability to any other party to this Agreement, except that
(i) each Agent shall be entitled to any commission earned by it in accordance
with the third paragraph of Section 3(a) hereof, (ii) if at the time of
termination (a) an Agent shall own any Notes purchased from the Company as
principal with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his or its agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant regarding the provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses set forth in
Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery set forth in Section 11 hereof and
the provisions concerning governing law and forum set forth in Section 14 hereof
shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Newell Rubbermaid Inc.
29 East Stephenson Street
Freeport, Illinois 61032
Attention: Clarence R. Davenport
Telecopier: 815-233-8060
If to Chase Securities:
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium Term Note Desk
Telecopier: 212-834-6081
If to Goldman Sachs:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 28
Attention: Credit Department, Credit Control -
Medium Term Note
Telecopier: 212-346-2793
If to Morgan Stanley:
Morgan Stanley & Co. Incorporated
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Manager - Continuously Offered Products
Telecopier: 212-761-0780
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention: Peter Cooper,
Investment Banking Information Center
Telecopier: 212-761-0260
If to Banc One:
Banc One Capital Markets, Inc.
One First National Plaza
Mail Suite 0595, 8th Floor
Chicago, Illinois 60670
Attention: Evonne Taylor
Telecopier: 312-732-4172
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the
parties created hereby shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such state. Any suit, action or proceeding brought by the Company against an
Agent in connection with or arising under this Agreement shall be brought solely
in the state or federal court of appropriate jurisdiction located in The City of
New York.
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 29
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon each Agent and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument along with all counterparts
will become a binding agreement between the Agents and the Company in
accordance with its terms.
Very truly yours,
NEWELL RUBBERMAID INC.
By:
-----------------------------------
Name: C.R. Davenport
Title: Vice President - Treasurer
<PAGE>
Banc One Capital Markets, Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
___________, 1999
Page 30
Accepted:
BANC ONE CAPITAL MARKETS, INC.
By:
-----------------------------
Name:
Title:
CHASE SECURITIES INC.
By:
-----------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
-----------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
-----------------------------
Name:
Title:
<PAGE>
EXHIBIT 4.1
FIXED RATE GLOBAL MEDIUM-TERM NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<TABLE>
<S> <C> <C>
REGISTERED PRINCIPAL AMOUNT
No. FX ________________ CUSIP No. ________________ $_______________________
NEWELL RUBBERMAID INC.
MEDIUM-TERM NOTE,
SERIES B
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY:
INTEREST PAYMENT DATES: RECORD DATE:
(January 1 and July 1, unless (Fifteen days prior to the
otherwise specified) applicable Interest Payment
Date, unless otherwise specified)
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE
REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DENOMINATIONS: ADDENDUM ATTACHED:
(Integral multiples of $1,000, unless : Yes
otherwise specified) : No
OTHER PROVISIONS:
</TABLE>
<PAGE>
NEWELL RUBBERMAID INC., a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE
& CO., or registered assigns, the principal sum of DOLLARS
on the Stated Maturity specified above (except to the extent redeemed
or repaid prior to the Stated Maturity), and to pay interest thereon at the
Interest Rate per annum specified above, until the principal hereof is paid
or duly made available for payment. Reference herein to "this Note",
"hereof", "herein" and comparable terms shall include an Addendum hereto if
an Addendum is specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity or any
Redemption Date or Optional Repayment Date (as defined below) (the date of each
such Stated Maturity, Redemption Date and Optional Repayment Date and the date
on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
PROVIDED, HOWEVER, that if the Original Issue Date is between a Regular Record
Date (as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date. Unless otherwise specified above, the "Regular Record Date"
shall be the date 15 calendar days (whether or not a Business Day) prior to the
applicable Interest Payment Date. Interest on this Note will accrue from and
including the most recent Interest Payment Date to which interest has been paid
or duly provided for or, if no interest has been paid, from the Original Issue
Date specified above, to, but excluding such Interest Payment Date. If the
Maturity or an Interest Payment Date falls on a day which is not a Business Day,
the payment due on such Maturity or Interest Payment Date will be paid on the
next succeeding Business Day with the same force and effect as if made on such
Maturity or Interest Payment Date, as the case may be, and no interest shall
accrue with respect to such payment for the period from and after such Maturity
or Interest Payment Date. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will as provided in the Indenture be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such Interest Payment Date. Any such interest which is payable, but not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest"), shall forthwith cease to be payable to the registered
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Note not less than 10 days prior to such Special Record Date, or may be paid at
any time in any other lawful manner, all as more fully provided in the
Indenture.
Payment of the principal of and interest on this Note will be made at
the Office or Agency of the Company maintained by the Company for such purpose
in the Borough of
2
<PAGE>
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
Unless the certificate of authentication hereon has been executed by or
on behalf of The Chase Manhattan Bank, the Trustee for this Note under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized officers, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes, Series B (the "Notes"). The Securities are issued and to
be issued under a senior indenture (the "Indenture") dated as of November 1,
1995, between the Company and The Chase Manhattan Bank (successor by merger
to The Chase Manhattan Bank (National Association)) (herein called the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights thereunder of the Company, the
Trustee and the Holders of the Notes and the terms upon which the Notes are
to be authenticated and delivered. The terms of individual Notes may vary
with respect to interest rates or interest rate formulas, issue dates,
maturity, redemption, repayment, currency of payment and otherwise as
provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations, unless otherwise specified above, of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes as requested by the Holder surrendering the same. If
(x) the Depository is at any time unwilling or unable to continue as depository
and a successor depository is not appointed by the Company within 60 days, (y)
the Company executes and delivers to the Trustee a Company Order to the effect
that this Note shall be exchangeable or (z) an Event of Default has occurred and
is continuing with respect to the Notes, this Note shall be exchangeable for
Notes in definitive form of like tenor and of an equal aggregate principal
amount, in authorized denominations. Such definitive Notes shall be registered
in such name or names as the Depository shall instruct the Trustee. If
definitive Notes are so delivered, the Company may make such changes to the form
of this Note as are necessary or appropriate to allow for the issuance of such
definitive Notes.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder prior
to its Stated Maturity on any Holder's Optional Repayment Date(s), if any,
indicated above. If no Optional Repayment Dates are set forth above, this Note
may not be so repaid at the option of the Holder hereof prior to the Stated
Maturity. On any Optional Repayment Date this Note shall be repayable in whole
or in part in an amount equal to $1,000 or any integral multiple thereof
(provided that any remaining principal amount shall be an authorized
denomination) at the option of the Holder hereof at a repayment price equal to
100% of the principal amount to be repaid, together with interest thereon
payable to the date of repayment. For this Note to be repaid in whole or in part
at the option of the Holder hereof, this Note must be received, with the form
3
<PAGE>
entitled "Option to Elect Repayment" below duly completed, by the Trustee at its
office at 55 Water Street, Room 234, Corporate Trust Securities Window, New
York, New York 10041 or such address which the Company shall from time to time
notify the Holder hereof ("Corporate Trust Office"), not more than 60 nor less
than 30 days prior to an Optional Repayment Date. This Note must be received by
the Trustee by 5:00 P.M., New York City time, on the last day for giving such
notice. Exercise of such repayment option by the Holder hereof shall be
irrevocable. In the event of payment of this Note in part only, a new Note for
the unpaid portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof.
This Note may be redeemed at the option of the Company prior to its
Stated Maturity on any date on and after the Initial Redemption Date, if any,
specified above (the "Redemption Date"). If no Initial Redemption Date is set
forth above, this Note may not be redeemed at the option of the Company prior to
the Stated Maturity. On and after the Initial Redemption Date, if any, this Note
may be redeemed at any time in whole or from time to time in part in increments
of $1,000 (provided that any remaining principal amount shall be an authorized
denomination) at the option of the Company at the applicable Redemption Price
(as defined below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
If this Note is redeemable at the option of the Company prior to its
Stated Maturity, the "Redemption Price" shall initially be the Initial
Redemption Percentage, specified above, of the principal amount of this Note to
be redeemed and shall decline at each anniversary of the Initial Redemption Date
by the Annual Redemption Percentage Reduction, if any, specified above, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
Interest payments on this Note shall include interest accrued from, and
including, the Original Issue Date indicated above, or the most recent date to
which interest has been paid or duly provided for, to, but excluding, the
related Interest Payment Date or Maturity, as the case may be, at the rate per
annum stated on the face hereof until the principal amount hereof is paid or
made available for payment. Unless otherwise specified above, interest will be
computed on the basis of a 360-day year of twelve 30-day months for the period
specified hereunder.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above or as set forth under Other Provisions if so set forth above.
If an Event of Default (as defined in the Indenture) with respect to
the Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
4
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in aggregate principal amount of the
Securities at the time Outstanding, as defined in the Indenture, of each series
affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all the Securities
of each series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Security Register of the Company, upon surrender of this Note
for registration of transfer at the office or agency of the Company in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
Dated: ____________
NEWELL RUBBERMAID INC.
By:
--------------------------------
[FACSIMILE OF SEAL]
Attest:
By:
--------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
6
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
- ----------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed. This
Note notice must be received by the Trustee by 5:00 P.M., New York City time, on
the last day for giving such notice.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in an amount equal to $1,000 or an
integral multiple thereof, provided that any remaining principal amount is equal
to an authorized denomination) which the Holder elects to have repaid and
specify the denomination or denominations (which shall be in an amount equal to
an authorized denomination) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such specification,
one such Note will be issued for the portion not being repaid).
$
-------------------------------------------------
NOTICE: The signature on this Option to Elect Repayment
Date must correspond with the name as written upon the face of this
Note in every particular, without alteration or enlargement or
any change whatever.
7
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)
(Please print or typewrite name and address including postal zip code of
assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the
premises.
Date
-------------------------------------------------
NOTICE: The signature of the registered Holder to this
assignment must correspond with the name as written upon the
face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
8
<PAGE>
Exhibit 4.2
FLOATING RATE GLOBAL MEDIUM-TERM NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY OR
BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<TABLE>
<S> <C> <C>
REGISTERED PRINCIPAL AMOUNT
No. BFLR ______________ CUSIP No. ________________ $_______________________
NEWELL RUBBERMAID INC.
MEDIUM-TERM NOTE,
SERIES B
(Floating Rate)
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY:
INDEX MATURITY: INITIAL INTEREST RATE: SPREAD:
INITIAL INTEREST RESET DATE: REGULAR RECORD DATE: INTEREST PAYMENT DATES:
(Fifteen days prior to
the applicable Interest
Payment Date, unless
otherwise specified)
SPREAD MULTIPLIER: INTEREST RESET DATES:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INITIAL REDEMPTION DATE:
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT: IF INTEREST RATE BASIS IS LIBOR:
(The Chase Manhattan, Bank
unless otherwise specified)
<PAGE>
DESIGNATED LIBOR PAGE:
- Reuters Page: _________
- Telerate Page: _________
INTEREST CALCULATION: DAY COUNT CONVENTION
- - Regular Floating Rate Note - Actual/360 for the period
- - Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: - Actual/Actual to the period
Fixed Interest Rate: from to .
- - Inverse Floating Rate Note
Fixed Interest Rate:
ADDENDUM ATTACHED: DENOMINATIONS:
- - Yes (Integral multiples of $1,000,
unless otherwise specified)
- - No
IF INTEREST RATE BASIS OTHER PROVISIONS:
IS PRIME RATE:
- - Prime Rate--Major Banks
- - Prime Rate--H.15
IF INTEREST RATE BASIS IS CMT RATE:
- - Designated CMT Telerate Page is 7051
- - Designated CMT Telerate Page is 7052
- Weekly Average
- Monthly Average
- - Designated CMT Maturity Index:
</TABLE>
2
<PAGE>
NEWELL RUBBERMAID INC., a Delaware corporation ("Issuer" or the
"Company," which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of
DOLLARS on the Stated Maturity specified above (except to the extent redeemed or
repaid prior to the Stated Maturity Date), and to pay interest thereon, at a
rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, and such other terms
specified above, until the principal hereof is paid or duly made available for
payment. Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date specified above next
succeeding the Original Issue Date specified above, and on the Stated Maturity
or any Redemption Date or Optional Repayment Date (as defined below) (the date
of each such Stated Maturity, Redemption Date and Optional Repayment Date and
the date on which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
PROVIDED, HOWEVER, that if the Original Issue Date is between a Regular Record
Date (as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date; and PROVIDED, FURTHER, that if an Interest Payment Date
(other than an Interest Payment Date at Maturity) would fall on a day that is
not a Business Day (as defined below), such Interest Payment Date shall be
postponed to the following day that is a Business Day, except that in the case
the Interest Rate Basis is LIBOR, as indicated above, if such next Business Day
falls in the next calendar month, such Interest Payment Date shall be the next
preceding day that is a Business Day. Except as provided above, interest
payments will be made on the Interest Payment Dates shown above. Unless
otherwise specified above, the "Regular Record Date" shall be the date 15
calendar days (whether or not a Business Day) prior to the applicable Interest
Payment Date. Interest on this Note will accrue from and including the Original
Issue Date specified above, at the rates determined from time to time as
specified herein, until the principal hereof has been paid or made available for
payment. If the Maturity falls on a day which is not a Business Day as defined
below, the payment due on such Maturity will be paid on the next succeeding
Business Day with the same force and effect as if made on such Maturity and no
interest shall accrue with respect to such payment for the period from and after
such Maturity. The interest so payable and punctually paid or duly provided for
on any Interest Payment Date will as provided in the Indenture be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such Interest
Payment Date. Any such interest which is payable, but not punctually paid or
duly provided for on any Interest Payment Date (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holder of this Note not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at
the Office or Agency of the Company maintained by the Company for such purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Unless the certificate of authentication hereon has been executed by or
on behalf of The Chase Manhattan Bank, the Trustee with respect to the Notes
under the Indenture, or its successor thereunder, by the manual signature of one
of its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of Securities (hereinafter
called the "Securities") of the Company designated as its Medium-Term Notes,
Series B (the "Notes"). The Securities are issued and to be issued under a
3
<PAGE>
senior indenture (the "Indenture") dated as of November 1, 1995, between the
Company and The Chase Manhattan Bank (successor by merger to The Chase
Manhattan Bank (National Association)) (herein called the "Trustee", which
term includes any successor Trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the Company, the Trustee and
the Holders of the Notes and the terms upon which the Notes are to be
authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise as provided in the
Indenture.
The Notes are issuable only in registered form without coupons in
denominations of, unless otherwise specified above, $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes as requested by the Holder surrendering the same. If
(x) the Depository is at any time unwilling or unable to continue as depository
and a successor depository is not appointed by the Company within 60 days, (y)
the Company executes and delivers to the Trustee a Company Order to the effect
that this Note shall be exchangeable or (z) an Event of Default has occurred and
is continuing with respect to the Notes, this Note shall be exchangeable for
Notes in definitive form of like tenor and of an equal aggregate principal
amount, in authorized denominations. Such definitive Notes shall be registered
in such name or names as the Depository shall instruct the Trustee. If
definitive Notes are so delivered, the Company may make such changes to the form
of this Note as are necessary or appropriate to allow for the issuance of such
definitive Notes.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the Holder prior
to its Stated Maturity on the Holder's Optional Repayment Date(s), if any,
indicated on the face hereof. If no Holder's Optional Repayment Dates are set
forth on the face hereof, this Note may not be so repaid at the option of the
Holder hereof prior to the Stated Maturity. On any Holder's Optional Repayment
Date, this Note shall be repayable in whole or in part in an amount equal to
$1,000 or integral multiples thereof (provided that any remaining principal
amount shall be an authorized denomination) at the option of the Holder hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of repayment. For this Note
to be repaid in whole or in part at the option of the Holder hereof, this Note
must be received, with the form entitled "Option to Elect Repayment" below duly
completed, by the Trustee at its office at 55 Water Street, Room 234, Corporate
Trust Securities Window, New York, New York 10041 or such address which the
Company shall from time to time notify the Holders of the Medium-Term Notes (the
"Corporate Trust Office"), not more than 60 nor less than 30 days prior to a
Holder's Optional Repayment Date. This Note must be received by the Trustee by
5:00 P.M., New York City time, on the last day for giving such notice. Exercise
of such repayment option by the Holder hereof shall be irrevocable. In the event
of payment of this Note in part only, a new Note for the unpaid portion hereof
shall be issued in the name of the Holder hereof upon the surrender hereof.
This Note may be redeemed at the option of the Company prior to its
Stated Maturity on any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). If no Initial Redemption
Date is set forth on the face hereof, this Note may not be redeemed at the
option of the Company prior to the Stated Maturity. On and after the Initial
Redemption Date, if any, this Note may be redeemed at any time in whole or from
time to time in part in increments of $1,000 or integral multiples thereof
(provided that any remaining principal amount shall be an authorized
denomination) at the option of the Company at the applicable Redemption Price
(as defined below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part only, a new
Note for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the surrender hereof.
If this Note is redeemable at the option of the Company prior to its
Stated Maturity, the "Redemption Price" shall initially be the Initial
Redemption Percentage, specified on the face hereof, of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction, if any, specified
on the face hereof, of the principal amount to be redeemed until the Redemption
Price is 100% of such principal amount.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate Note
4
<PAGE>
above, then, except as described below, this Note shall bear interest
at the rate determined by reference to the applicable Interest Rate
Basis or Bases shown above (1) plus or minus the applicable Spread, if
any, and/or (2) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described above. Commencing on the
first Interest Reset Date, the rate at which interest on this Note is
payable will be reset as of each Interest Reset Date specified above;
PROVIDED, HOWEVER, that the interest rate in effect for the period from
the Original Issue Date to the first Interest Reset Date will be the
Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable Interest
Rate Basis or Bases shown above (1) plus or minus the applicable
Spread, if any, and/or (2) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described
above. Commencing on the first Interest Reset Date, the rate at which
interest on this Note is payable will be reset as of each Interest
Reset Date specified above; PROVIDED, HOWEVER, that (i) the interest
rate in effect for the period from the date of issue to the first
Interest Reset Date will be the Initial Interest Rate, and (ii) the
interest rate in effect commencing on, and including, the date on which
interest begins to accrue on a fixed rate basis to Maturity will be the
Fixed Interest Rate, if the rate is specified above, or if no Fixed
Interest Rate is specified, the interest rate in effect on the Floating
Rate/Fixed Rate Note on the day immediately preceding the date on which
interest begins to accrue on a fixed rate basis.
3. If this Note is designated as an Inverse Floating Rate Note
above, then, except as described below, this Note will bear interest
equal to the Fixed Interest Rate indicated above minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown above (1) plus or minus the applicable Spread, if any, and/or (2)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described above; PROVIDED, HOWEVER, that unless
otherwise specified on the face hereof, the interest rate hereon will
not be less than zero percent. Commencing on the first Interest Reset
Date, the rate at which interest on this Note is payable shall be reset
as of each Interest Reset Date specified above; PROVIDED, HOWEVER, that
the interest rate in effect for the period from the Original Issue Date
to the Initial Interest Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is designated
above as having an Addendum attached or as having Other Provisions
apply, the Note shall bear interest in accordance with the terms
described in such Addendum or specified under Other Provisions.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the immediately preceding Interest Reset Date. Each Interest Rate
Basis shall be the rate determined in accordance with the applicable provision
below. If any Interest Reset Date (which term includes the term first Interest
Reset Date unless the context otherwise requires) would otherwise be a day that
is not a Business Day, that Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and the next Business Day falls in the
next succeeding calendar month, that Interest Reset Date shall be the
immediately preceding Business Day. In addition, if an Interest Rate Basis
specified on the face hereof is the Treasury Rate and the Interest Determination
Date would otherwise fall on an Interest Reset Date, then that Interest Reset
Date shall be postponed to the next succeeding Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and including
the immediately preceding Interest Payment Date in respect of which interest has
been paid (or from and including the Original Issue Date specified above, if no
interest has been paid), to but excluding the related Interest Payment Date;
PROVIDED, HOWEVER, that the interest payments on Maturity will include interest
accrued to but excluding such Maturity. Unless otherwise specified above,
accrued interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. The accrued interest factor shall
be computed by adding the interest factor calculated for each day from the date
of issue or from the last date to which
5
<PAGE>
interest shall have been paid or duly provided for, to the date for which
accrued interest is being calculated. Unless otherwise specified above, the
interest factor for each such day shall be computed by dividing the interest
rate applicable to such day by 360, if the Day Count Convention specified above
is "Actual/360" for the period specified thereunder or by the actual number of
days in the year if the Day Count Convention specified above is "Actual/Actual"
for the period specified thereunder. In the case of notes for which the Interest
Rate Basis is the CD Rate, the Commercial Paper Rate, the Eleventh District Cost
of Funds Rate, the Federal Funds Rate, LIBOR or the Prime Rate, the interest
factor for each day will be computed by dividing the interest rate applicable to
each day by 360. In the case of notes for which the Interest Rate Basis is the
CMT Rate or the Treasury Rate, the interest factor for each day will be computed
by dividing the interest rate applicable to each day by the actual number of
days in the year. The interest factor for notes for which the interest rate is
calculated with reference to two or more Interest Rate Bases will be calculated
in each period in the same manner as if only one of the applicable Interest Rate
Bases applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate and the Commercial Paper Rate shall be
the second Business Day preceding each Interest Reset Date; the "Interest
Determination Date" with respect to the Federal Funds Rate and the Prime Rate
shall be the Business Day immediately preceding each Interest Reset Date; the
"Interest Determination Date" with respect to LIBOR shall be the second London
Business Day (as defined below) preceding each Interest Reset Date; the
"Interest Determination Date" with respect to the Eleventh District Cost of
Funds Rate shall be the last working day of the month immediately preceding each
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to the Treasury Rate shall be the day
in the week in which the related Interest Reset Date falls on which day Treasury
bills (as defined below) are normally auctioned. Treasury bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except that
the auction may be held on the preceding Friday; PROVIDED, HOWEVER, that if an
auction is held on the Friday of the week preceding the related Interest Reset
Date, the related Interest Determination Date shall be such preceding Friday;
and PROVIDED, FURTHER, that if an auction shall fall on any Interest Reset Date,
then the related Interest Reset Date shall instead be the first Business Day
following such auction. If the interest rate of this Note is determined with
reference to two or more Interest Rate Bases, the Interest Determination Date
pertaining to this Note will be the latest Business Day which is at least two
Business Days prior to such Interest Reset Date on which each Interest Rate
Basis shall be determinable. Each Interest Rate Basis shall be determined and
compared on such date, and the applicable interest rate shall take effect on the
related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date", if
applicable, pertaining to any Interest Determination Date will be the earlier of
(i) the tenth calendar day after such Interest Determination Date or, if such
day is not a Business Day, the next succeeding Business Day, or (ii) the
Business Day preceding the applicable Interest Payment Date or date of Maturity,
as the case may be. All calculations on this Note shall be made by the
calculation agent specified above or such successor thereto as is duly appointed
by the Company.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards. For example, 9.876545% or
.09876545 would be rounded to 9.87655% or .0987655. All dollar amounts used in
or resulting from such calculation will be rounded to the nearest cent with
one-half cent being rounded upward.
As used herein, "Business Day" means any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which commercial
banks are authorized or required by law, regulation or executive order to
close in The City of New York; PROVIDED, HOWEVER, that, with respect to Notes
as to which LIBOR is an applicable Interest Rate Basis, such day is also a
London Business Day (as hereinafter defined).
As used herein, "London Business Day" means a day on which commercial
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banks are open for business, including dealings in the Index Currency in London.
DETERMINATION OF CD RATE. If an Interest Rate Basis for this Note is
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as:
(1) the rate on the applicable Interest Determination Date for
negotiable United States dollar certificates of deposit having
the Index Maturity specified above published in H.15(519)
under the heading "CDs (secondary market)", or
(2) if the rate referred to in clause (1) above is not so
published by 3:00 P.M., New York City time, on the related
calculation date, the rate on the applicable Interest
Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity specified above
as published in H.15 Daily Update, or other recognized
electronic source used for the purpose of displaying the
applicable rate, under the caption "CDs (secondary market)",
or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the arithmetic mean of
the secondary market offered rates as of 10:00 A.M., New York
City time, on the applicable Interest Determination Date, of
three leading non-bank dealers in negotiable United States
dollar certificates of deposit in The City of New York
selected by the calculation agent for negotiable United States
dollar certificates of deposit of major United States money
center banks for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity specified
above in an amount that is representative for a single
transaction in that market at that time, or
(4) if the dealers selected by the calculation agent are not
quoting as mentioned in clause (3) above, the CD rate in
effect on the applicable Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as
H.15(519), or any successor publication, published by the Board of Governors of
the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site of the Board of Governors of the Federal Reserve
System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site
or publication.
DETERMINATION OF CMT RATE. If an Interest Rate Basis for this Note is
the CMT Rate, as indicated above, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as:
(1) the rate displayed on the Designated CMT Telerate Page under
the caption "...Treasury Constant Maturities... Federal
Reserve Board Release H.15... Mondays Approximately 3:45
P.M.", under the column for the Designated CMT Maturity Index
for:
(a) if the Designated CMT Telerate Page is 7051, the rate
on the applicable Interest Determination Date, and
(b) if the Designated CMT Telerate Page is 7052, the
weekly or the monthly average, as specified above,
for the week or the month, as applicable, ended
immediately preceding the week or the month, as
applicable, in which the related Interest
Determination Date falls, or
(2) if the rate referred to in clause (1) is no longer
displayed on the relevant page or is not so displayed
by 3:00 P.M., New York City time, on the related
calculation date, the treasury constant maturity rate
for the Designated CMT Maturity Index published in
H.15(519), or
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(3) if the rate referred to in clause (2) is no longer
published or is not published by 3:00 P.M., New York
City time, on the related calculation date, the
treasury constant maturity rate for the Designated
CMT Maturity Index, or other United States Treasury
rate for the Designated CMT Maturity Index, for the
applicable Interest Determination Date with respect
to the applicable Interest Reset Date as may then be
published by either the Board of Governors of the
Federal Reserve System or the United States
Department of the Treasury that the calculation agent
determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and
published in H.15(519), or
(4) if the rate referred to in clause (4) applicable
information is not so published by 3:00 P.M., New
York City time, on the applicable calculation date,
the rate on the applicable Interest Determination
Date calculated by the calculation agent as a yield
to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately
3:30 P.M., New York City time, on the applicable
Interest Determination Date reported, according to
their written records, by three leading primary
United States government securities dealers in The
City of New York, which may include the agent or its
affiliates (each, a "Reference Dealer"), selected by
the calculation agent after eliminating the highest
quotation, or, in the event of equality, one of the
highest, and the lowest quotation or, in the event of
equality, one of the lowest, for the most recently
issued direct noncallable fixed rate obligations of
the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one
year, or
(5) if the calculation agent is unable to obtain three
applicable Treasury Note quotations as referred to in
clause (4), the rate on the applicable Interest
Determination Date calculated by the calculation
agent as a yield to maturity based on the arithmetic
mean of the secondary market offered rates as of
approximately 3:30 P.M., New York City time, on the
applicable Interest Determination Date of three
Reference Dealers in The City of New York selected by
the calculation agent from five Reference Dealers
selected by the calculation agent after eliminating
the highest quotation or, in the event of equality,
one of the highest and the lowest quotation or, in
the event of equality, one of the lowest, for
Treasury Notes with an original maturity of the
number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index
and in an amount of at least $100 million, or
(6) if three or four and not five of Reference Dealers
are quoting as referred to in clause (5) above, the
rate will be calculated by the calculation agent as
the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of quotes will be
eliminated, or
(7) if fewer than three Reference Dealers selected by the
calculation agent are quoting as mentioned in clause
(6), the rate in effect on the applicable Interest
Determination Date.
If two Treasury Notes with an original maturity as described
in clause (6) have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the calculation agent will obtain from
five Reference Dealers quotations for the Treasury Notes with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. or any successor service on the page specified above or any other page as
may replace the specified page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519), or, if no page is
specified above, page 7052.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities, either 1, 2, 3, 5, 7, 10, 20 or 30 years,
specified above with respect to which the CMT Rate will be calculated or, if no
maturity is specified above, 2 years.
DETERMINATION OF COMMERCIAL PAPER RATE. If an Interest Rate Basis for
this Note is the Commercial Paper Rate, as indicated above, the Commercial Paper
Rate shall be determined on the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), as:
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(1) the Money Market Yield on the applicable Interest
Determination Date of the rate for commercial paper having the
Index Maturity specified above published in H.15(519) under
the caption "Commercial Paper-Nonfinancial", or
(2) if the rate described in clause (1) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the rate on the applicable Interest Determination Date
for commercial paper having the Index Maturity specified above
published in H.15 Daily Update, or other recognized electronic
source used for the purpose of displaying the applicable rate,
under the caption "Commercial Paper-Nonfinancial", or
(3) if the rate is referred to in clause (2) is not so published
by 3:00 P.M., New York City time, on the related calculation
date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the Money Market Yield
of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on the applicable Interest
Determination Date of three leading dealers of United States
dollar commercial paper in The City of New York, which may
include the agent and its affiliates, selected by the
calculation agent for commercial paper having the Index
Maturity specified above placed for industrial issuers whose
bond rating is "AA", or the equivalent, from a nationally
recognized statistical rating organization, or
(4) if the dealers selected by the calculation agent are not
quoting as mentioned in clause (3), the rate in effect on the
applicable Interest Determination Date.
"Money Market Yield" means a yield calculated in accordance with the
following formula and expressed as a percentage:
D x 360
Money Market Yield = --------------- x 100
360 - ( D x M )
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is the Eleventh District Cost of Funds Rate, as indicated above, the
Eleventh District Cost of Funds Rate shall be determined on the applicable
Interest Determination Date (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), and shall be:
(1) the rate equal to the monthly weighted average cost of funds
for the calendar month immediately preceding the month in
which the applicable Interest Determination Date falls as set
forth under the caption "11th District" on the display on
Bridge Telerate, Inc. or any successor service on page 7058 or
any other page as may replace the specified page on that
service ("Telerate Page 7058") as of 11:00 A.M., San Francisco
time, on the applicable Interest Determination Date, or
(2) if the rate referred to in clause (1) does not appear on
Telerate Page 7058 on the related Interest Determination Date,
the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District
that was most recently announced (the "Index") by the Federal
Home Loan Bank of San Francisco as the cost of funds for the
calendar month immediately preceding the applicable Interest
Determination Date, or
(3) if the Federal Home Loan Bank of San Francisco fails to
announce the Index on or before the applicable Interest
Determination Date for the calendar month immediately
preceding the applicable Interest Determination Date, the rate
in effect on the applicable Interest Determination Date.
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DETERMINATION OF FEDERAL FUNDS RATE. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate shall
be determined on the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date"), and shall be:
(1) the rate on the applicable Interest Determination Date for
United States dollar federal funds as published in H.15(519)
under the heading "Federal Funds (Effective)", as displayed on
Bridge Telerate, Inc. or any successor service on page 120 or
any other page as may replace the applicable page on that
service ("Telerate Page 120"), or
(2) if the rate referred to in clause (1) does not appear on
Telerate Page 120 or is not so published by 3:00 P.M., New
York City time, on the related calculation date, the rate on
the applicable Interest Determination Date for United States
dollar federal funds published in H.15 Daily Update, or other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "Federal
Funds/Effective Rate", or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the arithmetic mean of
the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of
United States dollar federal funds transactions in The City of
New York, which may include the agent or its affiliates,
selected by the calculation agent before 9:00 A.M., New York
City time, on the applicable Interest Determination Date, or
(4) if the brokers selected by the calculation agent are not
quoting as mentioned in clause (3), the rate in effect on the
applicable Interest Determination Date.
DETERMINATION OF LIBOR. "LIBOR" means the rate determined by the
Calculation Agent in accordance with the following provisions:
(1) if "LIBOR Telerate" is specified above or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified above as the method
for calculating LIBOR, LIBOR will be the rate for deposits in
United States dollars, as defined below, having the Index
Maturity specified above, commencing on the second London
Business Day immediately following that Interest Determination
Date that appears on the Designated LIBOR Page as of 11:00
A.M., London time, on the applicable Interest Determination
Date, or
(2) if "LIBOR Reuters" is specified above, LIBOR will be the
arithmetic mean of the offered rates for deposits in United
States dollars having the Index Maturity specified above,
commencing on the second London Business Day immediately
following that Interest Determination Date, that appear, on
the Designated LIBOR Page specified above as of 11:00 A.M.,
London time, on the applicable Interest Determination Date. If
the Designated LIBOR Page by its terms provides only for a
single rate, then the single rate will be used, or
(3) with respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as
the case may be, on the designated LIBOR Page as specified in
clauses (1) and (2), the rate calculated by the calculation
agent as the arithmetic mean of at least two quotations
obtained by the calculation agent after requesting the
principal London offices of each of four major reference
banks, which may include affiliates of the agent, in the
London interbank market to provide the calculation agent with
its offered quotation for deposits in United States dollars
for the period of the Index Maturity specified above,
commencing on the second London Business Day immediately
following the applicable Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00
A.M., London time, on the applicable Interest Determination
Date and in a principal amount that is representative for a
single transaction in United States dollars in that market at
that time, or
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<PAGE>
(4) if fewer than two quotations referred to in clause (2) are so
provided, the rate on the applicable Interest Determination
Date calculated by the calculation agent as the arithmetic
mean of the rates quoted at approximately 11:00 A.M., New
York City time, on the applicable Interest Determination Date
by three major banks, which may include affiliates of the
agent, in The City of New York selected by the calculation
agent for loans in United States dollars to leading European
banks, having the Index Maturity specified designated above
and in a principal amount that is representative for a single
transaction in United States dollars in that market at that
time, or
(5) if the banks so selected by the calculation agent are not
quoting as mentioned in clause (4), the rate in effect on the
applicable Interest Determination Date.
"Designated LIBOR Page" means either:
- if "LIBOR Telerate" is designated above or neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified above as the method for calculating
LIBOR, the display on Bridge Telerate, Inc. or any successor service on
the page specified in such pricing supplement or any page as may
replace the specified page on that service for the purpose of
displaying the London interbank rates of major banks for United
States dollars, or
- if "LIBOR Reuters" is specified above, the display on the Reuter
Monitor Money Rates Service or any successor service on the page
specified above or any other page as may replace the specified page on
that service for the purpose of displaying the London interbank rates
of major banks for United States dollars.
DETERMINATION OF PRIME RATE. "Prime Rate" means, with respect to any
Interest Determination Date relating to a Prime Rate Note or any Floating Rate
Note for which the interest rate is determined with reference to the Prime Rate
(a "Prime Rate Interest Determination Date"), the"Prime Rate" means:
(1) the rate on the applicable Interest Determination Date as
published in H.15(519) under the heading "Bank Prime Loan", or
(2) if the rate referred to in clause (1) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the rate on the applicable Interest Determination Date
published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying the
applicable rate under the caption "Bank Prime Loan", or
(3) if the rate referred to in clause (2) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the rate calculated by the calculation agent as the
arithmetic mean of the rates of interest publicly announced by
at least four banks that appear on the Reuters Screen US PRIME
1 Page as the particular bank's prime rate or base lending
rate as of 11:00 A.M., New York City time, on the applicable
Interest Determination Date, or
(4) if fewer than four rates described in clause (2) by 3:00 P.M.,
New York City time, on the related calculation date, the rate
on the applicable Interest Determination Date calculated by
the calculation agent as the arithmetic mean of the prime
rates or base lending rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the
close of business on the applicable Interest Determination
Date by three major banks, which may include affiliates of the
agent, in The City of New York selected by the calculation
agent, or
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<PAGE>
(5) if the banks selected by the calculation agent are not quoting
as mentioned in clause (4), the rate in effect on the
applicable Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter
Monitor Money Rates Service or any successor service on the "US PRIME 1" Page or
other page as may replace the US PRIME 1 Page on such service for the purpose of
displaying prime rates or base lending rates of major United States banks.
DETERMINATION OF TREASURY RATE. If an Interest Rate Basis for this Note is the
Treasury Rate, as specified above, the Treasury Rate shall be determined on the
applicable Interest Determination Date (a "Treasury Rate Interest Determination
Date") "Treasury Rate" means:
(1) the rate from the auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of
the United States ("Treasury Bills") having the Index Maturity
specified above under the caption "INVESTMENT RATE" on the
display on Bridge Telerate, Inc. or any successor service on
page 56 or any other page as may replace page 56 on that
service ("Telerate Page 56") or page 57 or any other page as
may replace page 57 on that service ("Telerate Page 57"), or
(2) if the rate described in clause (1) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the Bond Equivalent Yield of the rate for the applicable
Treasury Bills as published in H.15 Daily Update, or other
recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High", or
(3) if the rate described in clause (2) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the Bond Equivalent Yield of the auction rate of the
applicable Treasury Bills announced by the United States
Department of the Treasury, or
(4) in the event that the rate referred to in clause (3) is not
announced by the United States Department of the Treasury, or
if the Auction is not held, the Bond Equivalent Yield of the
rate on the applicable Interest Determination Date of Treasury
Bills having the Index Maturity specified above published in
H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market", or
(5) if the rate referred to in clause (4) is not so published by
3:00 P.M., New York City time, on the related calculation
date, the rate on the applicable Interest Determination Date
of the applicable Treasury Bills as published in H.15 Daily
Update, or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market",
or
(6) if the rate referred to in clause (5) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the applicable Interest Determination Date
calculated by the calculation agent as the Bond Equivalent
Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on
the applicable Interest Determination Date, of three primary
United States government securities dealers, which may include
the agent or its affiliates, selected by the calculation
agent, for the issue of Treasury Bills with a remaining
maturity closest to the Index Maturity specified above, or
(7) if the dealers selected by the calculation agent are not
quoting as mentioned in clause (6), the rate in effect on the
applicable Interest Determination Date.
"Bond Equivalent Yield" means a yield calculated in accordance with the
following formula and expressed as a percentage:
D X N
Bond Equivalent Yield = --------------- x 100
360 - ( D x M )
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
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Any provisions contained herein with respect to the determination of
one or more Interest Rate Bases, the specification of one or more Interest Rate
Bases, calculation of the Interest Rate applicable to this Note, its payment
dates the stated maturity date, any redemption or repayment provisions, or any
other matter relating hereto may be modified by the terms as specified above
under "Other Provisions" or in an Addendum relating hereto if so specified
above.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The Company hereby covenants for the benefit of the Holder
hereof, to the extent permitted by applicable law, not to claim voluntarily the
benefits of any laws concerning usurious rates of interest against such Holder.
Unless otherwise above, The Chase Manhattan Bank will be the
"Calculation Agent". At the request of the Holder hereof, the Calculation Agent
shall provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate which shall become effective as of the next
Interest Reset Date with respect to this Note.
If an Event of Default (as defined in the Indenture) with respect to
the Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in aggregate principal amount of the
Securities at any time Outstanding, as defined in the Indenture, of each series
affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all the Securities
of each series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Security Register of the Company, upon surrender of this Note
for registration of transfer at the office or agency of the Company in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
13
<PAGE>
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
Dated: ____________
NEWELL RUBBERMAID INC.
By:
-----------------------------------
[FACSIMILE OF SEAL]
Attest:
By:
-----------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
---------------------------------
Authorized Officer
14
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at____________________________________
_____________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its Corporate
Trust Office, or at such other place or places of which the Company shall from
time to time notify the Holder of this Note, not more than 60 nor less than 30
days prior to an Optional Repayment Date, if any, shown on the face of this
Note, this Note with this "Option to Elect Repayment" form duly completed. This
Note must be received by the Trustee by 5:00 P.M., New York City time, on the
last day for giving such notice.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be in an amount equal to $1,000 or an
integral multiple thereof, provided that any remaining principal amount shall be
an authorized denomination) which the Holder elects to have repaid and specify
the denomination or denominations (which shall be in an amount equal to an
authorized denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
$_______________________________
_________________________________________
NOTICE: The signature on this Option to
Date ___________________________ Elect Repayment must correspond with
the name as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatever.
15
<PAGE>
ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)_________________________________________
_____________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________________________ attorney to transfer said
Note on the books of the Company with full power of substitution in the
premises.
______________________________________
Date____________________________ NOTICE: The signature of the registered
Holder to this assignment must
correspond with the name as written upon
the face of the within instrument in
every particular, without alteration or
enlargement or any change whatsoever.
16
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Andrew A. Kling
(312) 258-5551
[email protected]
EXHIBIT 5.1
July 14, 1999
Newell Rubbermaid Inc.
29 East Stephenson Street
Freeport, IL 61032-0943
RE: NEWELL RUBBERMAID INC. REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Newell Rubbermaid Inc., a Delaware
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Act"). The Registration Statement relates to the registration under the Act of
up to $795,000,000 of (i) the Company's unsecured, senior and subordinated debt
securities, consisting of debentures, notes or other evidences of indebtedness
in one or more series ("Debt Securities"); (ii) preferred stock of the Company
in one or more series ("Preferred Stock"); and (iii) common stock, par value
$1.00 per share ("Common Stock" and collectively with the Debt Securities and
the Preferred Stock, the "Securities"), of the Company and related rights to
purchase Common Stock of the Company (including $29,500,000 of such securities
previously registered under the Company's registration on Form S-3 (File No.
33-66425).
The senior Debt Securities are to be issued under an indenture, dated
as of November 1, 1995, between the Company and The Chase Manhattan Bank, as
trustee, as filed as Exhibit 4.1 to the Company's Current Report on Form 8-K
dated May 3, 1996 (the "Senior Debt Indenture"). The subordinated Debt
Securities are to be issued under an indenture, dated November 1, 1995, between
the Company and The Chase Manhattan Bank, as trustee, in the form filed as
Exhibit 4.4 to the Company's Registration Statement on Form S-3 (File No.
33-64225) (the "Subordinated Debt Indenture"). Each such indenture is referred
to as an "Indenture" and, together, as the "Indentures."
The Securities may be offered and sold pursuant to one or more
underwriting or distribution agreements (each, together with any related
schedule of terms, an "Underwriting Agreement") between the Company and the
underwriters or agents named therein, or as otherwise provided pursuant to the
Registration Statement.
<PAGE>
Newell Rubbermaid Inc.
July 14, 1999
Page 2
In this regard, we have reviewed the Registration Statement and the
exhibits thereto and have examined such other documents and made such
investigation as we have deemed necessary in order to enable us to render the
opinions set forth below. In rendering such opinions, we have assumed that (i)
the Registration Statement will have become effective under the Act and the
Indentures have been qualified under the Trust Indenture Act of 1939, as
amended, (ii) a Prospectus Supplement (a "Prospectus Supplement") relating to
the Securities to be offered and sold as contemplated by the Registration
Statement will be prepared, delivered and filed as contemplated by the Act,
(iii) the Senior Debt Indenture represents the valid and binding obligation of
the trustee thereunder, (iv) the Subordinated Debt Indenture will be executed
and delivered in substantially the form filed as an exhibit to the Registration
Statement and will represent a valid and binding obligation of the trustee
thereunder, (v) each Underwriting Agreement, as applicable, will be executed and
delivered in substantially the respective form filed as an exhibit to the
Registration Statement, and (vi) each Underwriting Agreement will be authorized,
executed and delivered by or on behalf of the underwriters named therein and
will represent a valid and binding obligation of each such underwriter.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
2. The Debt Securities will be valid and binding obligations of the
Company, enforceable in accordance with their terms (except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles and except that a
claim in respect of any Debt Securities denominated other than in United States
dollars may be converted into United States dollars at a rate of exchange
prevailing at a date determined by applicable law and enforcement thereof may be
further limited by governmental authority to limit, delay or prohibit the making
of payments in a foreign currency or currency unit or payment outside the United
States), at such time as: (a) the board of directors of the Company or a duly
authorized committee thereof (the "Board of Directors") shall have established
by resolution, not inconsistent with the applicable Indenture, a series in which
such Debt Securities are to be issued and the terms of such Debt Securities, and
such series and terms shall have been set forth, or determined in the manner
provided, in an officers' certificate or established in a supplemental indenture
in accordance with the requirements of the applicable Indenture; and (b) the
issuance and sale of such Debt Securities shall have been duly authorized by the
Board of Directors, and such Debt Securities shall have been duly executed,
authenticated, issued, registered (if applicable) and delivered pursuant to the
provisions of the applicable Indenture and, if applicable, in accordance with a
duly authorized, completed and executed Underwriting Agreement, as contemplated
in the Registration Statement and the related Prospectus Supplement, against
payment of the agreed consideration therefor.
<PAGE>
Newell Rubbermaid Inc.
July 14, 1999
Page 3
3. At such time as: (a) the Board of Directors shall have
established by resolution a series in which Preferred Stock is to be issued and
the terms of such Preferred Stock in accordance with the Delaware General
Corporation Law and the Company's Restated Certificate of Incorporation, and a
Certificate of Designations to the Company's Restated Certificate of
Incorporation setting forth such terms shall have been filed with the Secretary
of State of Delaware; and (b) such Preferred Stock is issued and sold pursuant
to resolutions of the Board of Directors and, if applicable, in accordance with
a duly authorized, completed and executed Underwriting Agreement, as
contemplated in the Registration Statement and the related Prospectus
Supplement, against payment of the consideration fixed therefor by the Board of
Directors, the Preferred Stock covered by the Registration Statement will be
duly authorized, legally issued, fully paid and non-assessable.
4. When duly issued and sold pursuant to resolutions of the Board
of Directors and, if applicable, in accordance with a duly authorized, completed
and executed Underwriting Agreement, as contemplated in the Registration
Statement and the related Prospectus Supplement, against payment of the
consideration fixed therefor by the Board of Directors, the Common Stock covered
by the Registration Statement will be duly authorized, legally issued, fully
paid and non-assessable and the related rights to purchase Common Stock, will be
entitled to the benefits of the amended Rights Agreement incorporated by
reference as an exhibit to the Registration Statement.
The opinions expressed above are limited to the laws of the State of
Illinois and Delaware and the federal laws of the United States, and no opinion
is expressed with respect to the laws of any other jurisdiction or any legal
matter not expressly addressed herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Opinion" in the prospectus constituting a part of the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Andrew A. Kling
----------------------------
Andrew A. Kling
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 24, 1999
included and incorporated by reference in Newell Rubbermaid Inc.'s Form 8-K for
the year ended December 31, 1998 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
July 14, 1999
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
NEWELL RUBBERMAID INC.
(Exact name of obligor as specified in its charter)
DELAWARE 36-3514169
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
29 EAST STEPHENSON STREET
FREEPORT, ILLINOIS 61032
(Address of principal executive offices) (Zip Code)
--------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 10TH day of MAY, 1999.
THE CHASE MANHATTAN BANK
By /s/ Joanne Adamis
---------------------
Joanne Adamis
Second Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998,
in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................ $ 13,915
Interest-bearing balances ......................................... 7,805
Securities:
Held to maturity securities ............................................ 1,429
Available for sale securities .......................................... 56,327
Federal funds sold and securities purchased under agreements to resell.. 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income ............... $131,095
Less: Allowance for loan and lease losses .............. 2,711
Less: Allocated transfer risk reserve .................. 0
--------
Loans and leases, net of unearned income, allowance, and reserve .. 128,384
Trading Assets ......................................................... 48,949
Premises and fixed assets (including capitalized leases) ............... 3,095
Other real estate owned ................................................ 239
Investments in unconsolidated subsidiaries and associated companies .... 199
Customers' liability to this bank on acceptances outstanding ........... 1,209
Intangible assets ...................................................... 2,081
Other assets ........................................................... 11,352
--------
TOTAL ASSETS ........................................................... $296,717
--------
--------
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ............................................... $105,879
Noninterest-bearing .................................... $ 39,175
Interest-bearing ....................................... 66,704
--------
In foreign offices, Edge and Agreement, subsidiaries and IBF's .... 79,294
Noninterest-bearing ................................... $ 4,082
Interest-bearing ....................................... 75,212
Federal funds purchased and securities sold under agreements to
repurchase ........................................................ 32,546
Demand notes issued to the U.S. Treasury ............................... 629
Trading liabilities .................................................... 36,807
Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one year or less ..................... 4,478
With a remaining maturity of more than one year through three
years ........................................................ 213
With a remaining maturity of more than three years ................ 115
Bank's liability on acceptances executed and outstanding ............... 1,209
Subordinated notes and debentures ...................................... 5,408
Other liabilities ...................................................... 10,855
TOTAL LIABILITIES ...................................................... 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .......................... 0
Common stock ........................................................... 1,211
Surplus (exclude all surplus related to preferred stock)................ 11,016
Undivided profits and capital reserves ................................. 6,762
Net unrealized holding gains (losses) on available-for-sale securities.. 279
Cumulative foreign currency translation adjustments .................... 16
TOTAL EQUITY CAPITAL ................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ................................... $296,717
--------
--------
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
