EXHIBIT 10.2
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NEWELL RUBBERMAID INC.
2002 DEFERRED COMPENSATION PLAN
Newell Rubbermaid Inc. hereby establishes, effective as of
January 1, 2002, the Newell Rubbermaid Inc. 2002 Deferred Compensation
Plan on the terms and conditions hereinafter set forth. Such Plan
provides certain eligible employees and directors with the opportunity
to defer portions of their base salary, bonus payments and director
fees in accordance with the provisions of the Plan.
SECTION I
DEFINITIONS
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For the purposes hereof, the following words and phrases shall
have the meanings set forth below, unless their context clearly
requires a different meaning:
1.1 "Account" means the bookkeeping account maintained by the
Committee on behalf of each Participant pursuant to Section 2.4. The
sum of each Participant's Sub-Accounts, in the aggregate, shall
constitute his Account.
1.2 "Affiliate" means any corporation, joint venture,
partnership, unincorporated association or other entity that is
affiliated, directly or indirectly, with the Company and which is
designated by the Committee from time to time.
1.3 "Base Salary" means the annual base rate of cash
compensation (which, in the case of a Participant who is a Director,
shall include his annual director's fees or other similar amounts
payable in cash) payable by the Company and/or by any Affiliate to a
Participant.
1.4 "Beneficiary" or "Beneficiaries" means the person or
persons, including one or more trusts, designated by a Participant in
accordance with the Plan to receive payment of the remaining balance
of the Participant's Account in the event of the death of the
Participant prior to the Participant's receipt of the entire amount
credited to his Account.
1.5 "Board" means the Board of Directors of the Company.
1.6 "Bonus" means cash incentive compensation payable pursuant
to a bonus or other incentive compensation plan, whether such plan is
now in effect or hereafter established by the Company, which the
Committee may designate from time to time.
1.7 "Change in Control" means the occurrence of any of the
following events without the prior written approval of a majority of
the entire Board as it exists immediately prior to such event;
provided that, in the case of an event described in (i) or (iii)
below, such approval occurs before the time of such event and, in the
case of an event described in (ii) below, such approval occurs prior
to the time that any other party to the event described in (ii) (or
any affiliate or associate thereof) acquires 20% or more of the Voting
Power:
(i) The acquisition by an entity, person or group
(including all affiliates or associates of such entity, person or
group) of beneficial ownership, as that term is defined in Rule
13d-3 under the Securities Exchange Act of 1934, of capital stock
of the Company entitled to exercise more than 50% of the
outstanding voting power of all capital stock of the Company
entitled to vote in elections of directors ("Voting Power");
(ii) The effective time of (A) a merger or consolidation of
the Company with one or more other corporations as a result of
which the holders of the outstanding Voting Power of the Company
immediately prior to such merger or consolidation (other than the
surviving or resulting corporation or any affiliate or associate
thereof) hold less than 50% of the Voting Power of the surviving
or resulting corporation, or (B) a transfer of a majority of the
Voting Power, or a Substantial Portion of the Property, of the
Company other than to an entity of which the Company owns at
least 50% of the Voting Power; or
(iii) The election to the Board of the Company, of
directors constituting a majority of the number of directors of
the Company then in the office.
For this purpose, "Substantial Portion of the Property of the Company"
shall mean 75% of the aggregate book value of the assets of the
Company and its affiliates and associates as set forth on the most
recent balance sheet of the Company, prepared on a consolidated basis,
by its regularly employed, independent, certified public accountants.
1.8 "Committee" means the committee appointed to administer the
Plan. Unless and until otherwise specified, the Committee under the
Plan shall be the Company's Benefit Plans Administrative Committee.
1.9 "Company" means Newell Rubbermaid Inc. and its successors,
including, without limitation, the surviving corporation resulting
from any merger or consolidation of Newell Rubbermaid Inc. with any
other corporation or corporations.
1.10 "Director" means a member of the Board.
1.11 "Disability" has the meaning given to such term in the
long-term disability plan of the Company or Affiliate, as applicable
to any Participant, or if no such plan exists, as determined by the
Committee.
1.12 "Election Agreement" means a Participant's agreement, on a
form provided by the Committee, to defer his Base Salary and/or Bonus.
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1.13 "Eligible Employee" means an employee of the Company or an
Affiliate who is, as determined by the Committee, a member of a
"select group of management or highly compensated employees," within
the meaning of Sections 201, 301 and 401 of ERISA, and who is selected
by the Committee to participate in the Plan. Unless otherwise
determined by the Committee, an Eligible Employee shall continue as
such until termination of employment.
1.14 "Employer Contributions" has the meaning given to such term
in Section 2.14.
1.15 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.16 "In-Service Sub-Account" means each bookkeeping Sub-Account
maintained by the Committee on behalf of each Participant pursuant to
Sections 2.4 and 2.5(ii). The Committee shall specify from time to
time the maximum number of In-Service Sub-Accounts that may be
established for any one Participant.
1.17 "Insolvent" means that the Company or an Affiliate,
whichever is applicable, has become subject to a pending voluntary or
involuntary proceeding as a debtor under the United States Bankruptcy
Code or has become unable to pay its debts as they mature.
1.18 "Participant" means any Eligible Employee or Director who
has at any time elected to defer the receipt of a Bonus and/or Base
Salary in accordance with the Plan and who, in conjunction with his
Beneficiary, has not received a complete distribution of the amount
credited to his Account.
1.19 "Plan" means this deferred compensation plan, which shall be
known as the Newell Rubbermaid Inc. 2002 Deferred Compensation Plan.
1.20 "Retirement Sub-Account" means the bookkeeping Sub-Account
maintained by the Committee on behalf of each Participant pursuant to
Sections 2.4 and 2.5(i).
1.21 "Sub-Account" means each bookkeeping Retirement Sub-Account
and In-Service Sub-Account maintained by the Committee on behalf of
each Participant pursuant to Section 2.5.
1.22 "Termination of Service Date" means the date a Participant
ceases to be an employee of the Company and its Affiliates by death,
retirement, Disability or otherwise. The "Termination of Service Date"
of any Participant who is a Director and who is not an Eligible
Employee shall be the date such Participant ceases to be a member of
the Board.
1.23 "Year" means a calendar year.
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SECTION II
DEFERRALS, CONTRIBUTIONS AND ACCOUNTS
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2.1 ELIGIBILITY. Subject to Section 2.3, an Eligible Employee
or Director may elect to defer receipt of all or a specified part of
his Base Salary and/or Bonus for any Year in accordance with Section
2.2. An Eligible Employee's, or Director's, entitlement to defer
shall cease with respect to the Year following the Year in which he
ceases to be an Eligible Employee or Director, as applicable.
2.2 ELECTION TO DEFER. Unless otherwise provided by the
Committee, an Eligible Employee or Director who desires to defer all
or part of his Base Salary and/or Bonus pursuant to the Plan must
complete and deliver an Election Agreement to the Committee before the
first day of the Year for which such compensation would otherwise be
paid. An Eligible Employee or Director who timely delivers an
executed Election Agreement to the Committee shall be a Participant.
Unless otherwise provided by the Committee, an Election Agreement that
is timely delivered to the Committee shall be effective for the Year
following the Year in which the Election Agreement is delivered to the
Committee, unless such Election Agreement is revoked or modified with
the consent of the Committee or until terminated automatically upon
either the termination of the Plan, the Company or any Affiliate which
employs the Participant becoming Insolvent or the Participant's
Termination of Service Date. Notwithstanding the above, in the event
that an individual first becomes an Eligible Employee or Director
during the course of a Year, rather than as of the first day of a
Year, the individual's Election Agreement must be filed no later than
thirty (30) days following the date he first becomes an Eligible
Employee or Director, as applicable, and such Election Agreement shall
be effective only with regard to Base Salary and Bonuses earned
following the filing of the Election Agreement with the Committee.
2.3 AMOUNT DEFERRED. A Participant shall designate on the
Election Agreement the portion of his Base Salary and/or Bonus that is
to be deferred in accordance with the following rules.
(i) BASE SALARY. A Participant may defer up to 50% of the
Base Salary that the Participant would otherwise receive during
the Year for services performed as an Eligible Employee,
provided, however, that the Participant shall not be permitted to
defer less than $2,000 of such amount during any one Year, and
any such attempted deferral shall not be effective. A
Participant may defer up to 100% of the Base Salary that the
Participant would otherwise receive during the Year for services
performed as a Director, provided, however, that the portion of
such Base Salary that is eligible for deferral will be reduced by
applicable employment taxes if such reduction is required in
order to provide the Company or its Affiliates with a source of
funds, from such Base Salary, with which to pay such employment
taxes.
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(ii) BONUS. A Participant may defer up to 100% of the Bonus
that the Participant earns during the Year. Notwithstanding the
preceding sentence, the portion of a Participant's Bonus that is
eligible for deferral will be reduced by applicable employment
taxes if such reduction is required in order to provide the
Company or its Affiliates with a source of funds, from the Bonus,
with which to pay such employment taxes. In any event, a
Participant shall not be permitted to defer less than $2,000 of
his Bonus during any one Year, and any such attempted deferral
shall not be effective. To the extent permitted by the
Committee, a Participant may specify in the Election Agreement
that different percentages or dollar amounts shall apply to
Bonuses payable under different bonus or incentive compensation
plans.
2.4 ACCOUNTS.
(i) CREDITING OF DEFERRALS. Base Salary and/or Bonus that
a Participant elects to defer shall be treated as if it were set
aside in one or more Sub-Accounts on the date the Base Salary
and/or Bonus would otherwise have been paid to the Participant.
in accordance with procedures established from time to time by
the Committee. A Participant may specify, in his Election
Agreement, the portion of his deferral that is to be credited to
a Retirement Sub-Account and/or to one or more In-Service
Sub-Accounts. To the extent that a Participant does not specify
the Sub-Account to which deferrals shall be credited, such
deferrals shall be credited to the Participant's Retirement
Sub-Account.
(ii) CREDITING OF GAINS, LOSSES AND EARNINGS TO ACCOUNTS.
Each Participant's Account will be credited with gains, losses
and earnings based on investment directions made by the
Participant in accordance with investment deferral crediting
options and procedures established from time to time by the
Committee. The Committee specifically retains the right in its
sole discretion to change the investment deferral crediting
options and procedures from time to time. By electing to defer
any amount pursuant to the Plan, each Participant shall thereby
acknowledge and agree that the Company or any Affiliate is not
and shall not be required to make any investment in connection
with the Plan, nor is it required to follow the Participant's
investment directions in any actual investment it may make or
acquire in connection with the Plan or in determining the amount
of any actual or contingent liability or obligation of the
Company or an Affiliate thereunder or relating thereto. Any
amounts credited to a Participant's Account with respect to which
a Participant does not provide investment direction shall be
credited with gains, losses and earnings as if such amounts were
invested in an investment option to be selected by the Committee
in its sole discretion.
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2.5 DATE OF DISTRIBUTION.
(i) RETIREMENT SUB-ACCOUNT. Subject to the following
provisions, a Participant may elect, on the first Election
Agreement that he delivers to the Committee pursuant to which
amounts are credited to his Retirement Sub-Account, to defer the
distribution or commencement of the distribution of his
Retirement Sub-Account to (A) January of the Year commencing
immediately after the Year in which occurs his Termination of
Service Date or (B) January of any Year following his Termination
of Service Date provided that such Year is no later than the Year
following the Year in which the Participant attains age 65.
(A) TERMINATION PRIOR TO AGE 60. If a Participant's
Termination of Service Date occurs as a result of his
voluntary termination, or involuntary termination without
cause, prior to his attainment of age 60, his Retirement
Sub-Account will be distributed as soon as practicable after
his Termination of Service Date. If a Participant's
Termination of Service Date occurs as a result of his
involuntary termination without cause (as determined by the
Committee in its sole discretion) prior to his attainment of
age 60, his Retirement Sub-Account will be distributed in
January of the Year elected by the Participant.
(B) TERMINATION AFTER AGE 60 AND PRIOR TO AGE 65. If
a Participant's Termination of Service Date occurs after he
attains age 60 and prior to his attainment of age 65, his
Retirement Sub-Account will be distributed or will commence
to be distributed in January of the Year elected by the
Participant.
(C) TERMINATION AFTER AGE 65. If a Participant's
Termination of Service Date occurs after he attains age 65,
his Retirement Sub-Account will be distributed or will
commence to be distributed in January of the Year commencing
immediately after his Termination of Service Date.
(ii) IN-SERVICE SUB-ACCOUNT. Subject to the following
provisions, a Participant may elect, on the first Election
Agreement that he delivers to the Committee pursuant to which
amounts are credited to an In-Service Sub-Account, to defer the
distribution or commencement of the distribution of such
In-Service Sub-Account to January of any Year that commences
prior to the Participant's Termination of Service Date as long as
that Year commences not less than two Years after the date of the
initial election pursuant to which amounts are credited to such
In-Service Sub-Account. If a Participant's Termination of
Service Date occurs as a result of his voluntary termination, or
involuntary termination without cause, prior to the complete
distribution of his In-Service Sub-Account, amounts credited to
that In-Service Sub-Account will be distributed as soon as
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practicable after his Termination of Service Date. If a
Participant's Termination of Service Date occurs as a result of
his involuntary termination without cause (as determined by the
Committee in its sole discretion) prior to the complete
distribution of his In-Service Sub-Account, amounts credited to
that In-Service Sub-Account will be distributed pursuant to the
payment schedule elected by the Participant.
2.6 FORM OF DISTRIBUTION.
(i) RETIREMENT SUB-ACCOUNT. Subject to the following
provisions, a Participant may elect, on the first Election
Agreement that he delivers to the Committee pursuant to which
amounts are credited to his Retirement Sub-Account, to receive
his Retirement Sub-Account in cash in a single lump sum or in
annual installments over a period not in excess of ten years.
(A) TERMINATION PRIOR TO AGE 60. If a Participant's
Termination of Service Date occurs as a result of his
voluntary termination, or involuntary termination without
cause, prior to his attainment of age 60, his Retirement
Sub-Account will be distributed in a single lump sum. If a
Participant's Termination of Service Date occurs as a result
of his involuntary termination without cause (as determined
by the Committee in its sole discretion) prior to his
attainment of age 60, his Retirement Sub-Account will be
distributed in the distribution form elected by the
Participant.
(B) TERMINATION AFTER AGE 60. If a Participant's
Termination of Service Date occurs after he attains age 60,
his Retirement Sub-Account will be distributed in the
distribution form elected by the Participant.
(ii) IN-SERVICE SUB-ACCOUNT. Subject to the following
provisions, a Participant may elect, on the first Election
Agreement that he delivers to the Committee pursuant to which
amounts are credited to an In-Service Sub-Account, to receive
that In-Service Sub-Account in cash in a single lump sum or in
annual installments over a period not in excess of five years.
If a Participant's Termination of Service Date occurs as a result
of his voluntary termination, or involuntary termination without
cause, prior to the complete distribution of his In-Service
Sub-Account, amounts credited to that In-Service Sub-Account will
be distributed in a single lump sum. If a Participant's
Termination of Service Date occurs as a result of his involuntary
termination without cause (as determined by the Committee in its
sole discretion) prior to the complete distribution of his
In-Service Sub-Account, amounts credited to that In-Service
Sub-Account will be distributed in the distribution form elected
by the Participant.
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(iii) GENERAL. The lump sum payment or the first
installment, as the case may be, shall be made as specified in
Section 2.5. In the event that a Sub-Account is paid in
installments, the amount of such Sub-Account remaining unpaid
shall continue to be credited with gains, losses and earnings as
provided in Section 2.4. The payment to a Participant or his
Beneficiary of a single lump sum or the number of installments
elected by the Participant pursuant to this Section shall
discharge all obligations of the Company and the Affiliates to
such Participant or Beneficiary under the Plan with respect to
that Sub-Account. In the event that a Sub-Account is paid in
installments, the amount of each installment shall be determined
in accordance with procedures established from time to time by
the Committee.
2.7 MODIFICATION OF DATE AND/OR FORM OF DISTRIBUTION.
Notwithstanding the payment terms designated by a Participant on the
first Election Agreement that he delivers to the Committee under the
Plan, a Participant may elect to change the form of payment of a
Sub-Account to a form of payment otherwise permitted under Section 2.6
and a Participant may elect to change the date of distribution of a
Sub-Account to a date otherwise permitted under Section 2.5; provided
that such election shall be made on a form provided by the Committee,
and provided further that any election made less than eighteen months
prior to the Participant's Termination of Service Date (or less than
eighteen months prior to the scheduled date of the first, or only,
payment from the Sub-Account) shall not be valid, and in such case,
the distribution of his Sub-Account shall be made in accordance with
the latest valid election of the Participant.
2.8 DEATH OF A PARTICIPANT.
(i) General. In the event of the death of a Participant,
the remaining amount of his Account shall be paid to his
Beneficiary or Beneficiaries as described in Section 2.8(ii).
Each Participant shall designate a Beneficiary or Beneficiaries
on a beneficiary designation form provided by the Committee. A
Participant's Beneficiary designation may be changed at any time
prior to his death by the execution and delivery of a new
beneficiary designation. The Beneficiary designation on file
with the Company that bears the latest date at the time of the
Participant's death shall govern. In the absence of a
Beneficiary designation, the amount of the Participant's Account
shall be paid to the Participant's estate in a lump sum amount
within 90 days after the appointment of an executor or
administrator or as otherwise determined by the Committee.
(ii) Form and Date of Distribution. Notwithstanding any
other provision, upon the death of a Participant, the remaining
balance in his Account shall be paid as follows. If the
Participant dies after payment of his Account has commenced, the
remaining balance of his Account will continue to be paid to his
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Beneficiary or Beneficiaries in accordance with the payment
schedule that has already commenced. Unless otherwise provided by
the Committee, if the Participant dies before payments from his
Account have commenced, his Account will be paid to his
Beneficiary or Beneficiaries in accordance with the form of
payment elected by the Participant, commencing (A) in the event
that the Participant has not attained age 60 at the time of his
death, in January of the Year commencing after the Year in which
occurs the Participant's death or (B) in the event that the
Participant has attained age 60 at the time of his death, in
January of the Year elected by the Participant.
2.9 DISABILITY. Notwithstanding any other provision, and unless
otherwise provided by the Committee, upon the Disability of a
Participant, the remaining balance in each of his Sub-Accounts shall
be paid as follows. If the Disability occurs after payment of the
Participant's Sub-Account has commenced, the remaining balance of his
Sub-Account will continue to be paid in accordance with the payment
schedule that has already commenced. If the Disability occurs before
payment of the Participant's Sub-Account has commenced, his
Sub-Account will be paid in accordance with the form of payment
elected by the Participant commencing either (a) as soon as
practicable after the Participant is no longer entitled to any
benefits under the long-term disability plan, if any, of the Company
or Affiliate, as applicable or (b) with the consent of the Committee,
as soon as practicable after the occurrence of the Disability.
2.10 SMALL PAYMENTS. Notwithstanding the foregoing, if a
Participant elects to receive his Retirement Sub-Account in
installment payments and his Retirement Sub-Account has a balance of
less than $25,000 at the time that installment payments are scheduled
to commence, the entire amount of the Participant's Retirement
Sub-Account may at the discretion of the Committee be paid in a single
lump sum.
2.11 ACCELERATION.
(i) Notwithstanding any other provision of the Plan, in the
event of an unforeseeable emergency, as defined in section
1.457-2(b)(4) and (5) of the Treasury Regulations, that is caused
by an event beyond the control of the Participant and that would
result in severe financial hardship to the individual if
acceleration were not permitted, the Committee may in its sole
discretion accelerate the payment to the Participant of the
amount of his Account, but only up to the amount necessary to
meet the emergency.
(ii) Notwithstanding any other provision of the Plan, each
Participant shall be permitted, at any time, to make an election
to receive, payable as soon as practicable after such election is
received by the Committee, a distribution of part or all of his
Account in a single lump sum, if (and only if) the amount in the
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Participant's Account subject to such distribution is reduced by
10%, which 10% amount shall thereupon irrevocably be forfeited.
2.12 TERMINATION OF PARTICIPATION. Notwithstanding any other
provision of the Plan, no Participant who is an Eligible Employee
shall be permitted to continue to participate in the Plan upon a
determination by the Committee that such Participant is not a member
of a select group of management or highly compensated employees of his
employer, within the meaning of ERISA. Upon such a determination, the
Committee may direct that the Participant receive an immediate lump
sum payment equal to the amount credited to his Account.
2.13 VESTING OF ACCOUNTS. Subject to Sections 2.1 1(ii) and
2.15(iii) and the following sentence, each Participant shall at all
times have a nonforfeitable interest in his Account balance.
Notwithstanding the preceding sentence, the portion of each
Participant's Account, if any, attributable to Employer Contributions
shall be subject to such vesting schedule as may be determined by the
Company or Affiliate from time to time in accordance with the
provisions of Section 2.14.
2.14 EMPLOYER CONTRIBUTIONS. The Company or any Affiliate may,
in its discretion, provide contributions ("Employer Contributions")
under this Plan with respect to one or more Participants. The amount
and vesting schedule of such Employer Contributions, if any, shall be
determined by the Company or Affiliate in its sole discretion.
2.15 CHANGE IN CONTROL. Notwithstanding any other provisions of
the Plan, the following provisions shall apply upon the occurrence of
a Change in Control.
(i) TRUST. As soon as administratively practicable
following the occurrence of a Change in Control, the Company
shall transfer to a trust, the assets of which shall remain
liable for the claims of the Company's or its Affiliate's general
creditors in the event of the Insolvency of the Company or any
such Affiliate, an amount (which amount may include a letter of
credit, as specified in such trust) equal to the aggregate
account balances, determined as of the date of the Change in
Control, of all persons then participating in the Plan.
(ii) UNREDUCED DISTRIBUTION. A Participant may make an
election, on an Election Agreement that he delivers to the
Committee at least one year prior to the occurrence of a Change
in Control, to receive his entire Account in a single lump sum as
soon as administratively practicable following the occurrence of
a Change in Control. In the event that a Change in Control
occurs prior to the distribution of a Participant's entire
Account, any such election made by a Participant shall override
his other elections regarding the form and timing of the
distribution of his Account.
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(iii) REDUCED DISTRIBUTION. Notwithstanding any other
provision of the Plan, each Participant shall be permitted,
during the one-year period commencing upon the occurrence of a
Change in Control, to make an election to receive, payable as
soon as practicable after such election is received by the
Committee, a distribution of part or all of his Account in a
single lump sum, if (and only if) the amount in the Participant's
Account subject to such distribution is reduced by 5%, which 5%
amount shall thereupon irrevocably be forfeited.
SECTION III
ADMINISTRATION
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The Company, through the Committee, shall be responsible for the
general administration of the Plan and for carrying out the provisions
hereof. The Committee shall have all such powers as may be necessary
to carry out the provisions of the Plan, including the power to (i)
resolve all questions relating to eligibility for participation in the
Plan and the amount in the Account of any Participant and all
questions pertaining to claims for benefits and procedures for claim
review, (ii) resolve all other questions arising under the Plan,
including any factual questions and questions of construction, and
(iii) take such further action as the Company shall deem advisable in
the administration of the Plan. The actions taken and the decisions
made by the Committee hereunder shall be final and binding upon all
interested parties. In accordance with the provisions of Section 503
of ERISA, the Committee shall provide a procedure for handling claims
of Participants or their Beneficiaries under the Plan. Such procedure
shall be in accordance with regulations issued by the Secretary of
Labor and shall provide adequate written notice within a reasonable
period of time with respect to the denial of any such claim as well as
a reasonable opportunity for a full and fair review by the Committee
of any such denial. Unless the context clearly requires otherwise,
the masculine pronoun wherever used herein shall be construed to
include the feminine pronoun.
SECTION IV
AMENDMENT AND TERMINATION
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4.1 AMENDMENT. The Company reserves the right to amend the Plan
at any time by action of the Board; provided, however, that no such
action shall adversely affect any Participant or Beneficiary who has
an Account, or result in any change in the timing or manner of payment
of the amount of any Account (except as otherwise permitted under the
Plan), without the consent of the Participant or Beneficiary.
4.2 Termination. The Company reserves the right to terminate
the Plan at any time by action of the Board. In the event that the
Company terminates the Plan, each Participant shall receive a
distribution of his Account, at the discretion of the Committee,
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either (a) in a single lump sum as soon as administratively
practicable following termination of the Plan or (b) in the form of
payment elected by the Participant commencing as soon as
administratively practicable following termination of the Plan.
SECTION V
MISCELLANEOUS
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5.1 NON-ALIENATION OF DEFERRED COMPENSATION. Except as
permitted by the Plan, no right or interest under the Plan of any
Participant or Beneficiary shall, without the written consent of the
Company, be (i) assignable or transferable in any manner, (ii) subject
to alienation, anticipation, sale, pledge, encumbrance, attachment,
garnishment or other legal process or (iii) in any manner liable for
or subject to the debts or liabilities of the Participant or
Beneficiary.
5.2 PARTICIPATION BY EMPLOYEES OF AFFILIATES. An Eligible
Employee who is employed by an Affiliate and who elects to participate
in the Plan shall participate on the same basis as an Eligible
Employee of the Company.
5.3 INTEREST OF PARTICIPANT.
(i) The obligation of the Company and the Affiliates under
the Plan to make payment of amounts reflected in an Account
merely constitutes the unsecured promise of the Company and the
Affiliates to make payments from their general assets and no
Participant or Beneficiary shall have any interest in, or a lien
or prior claim upon, any property of the Company or any
Affiliate. Nothing in the Plan shall be construed as
guaranteeing future employment to Eligible Employees. It is the
intention of the Company and the Affiliates that the Plan be
unfunded for tax purposes and for purposes of Title I of ERISA.
The Company may create a trust to hold funds to be used in
payment of its and the Affiliates' obligations under the Plan,
and may fund such trust; provided, however, that any funds
contained therein shall remain liable for the claims of the
Company's and any Affiliate's general creditors.
(ii) In the event that, in the discretion of the Committee,
the Company and/or its Affiliates purchases an insurance policy
or policies insuring the life of any Participant (or any other
property) to allow the Company and/or its Affiliates to recover
the cost of providing the benefits, in whole or in part,
hereunder, neither the Participants nor their Beneficiaries or
other distributees shall have nor acquire any rights whatsoever
therein or in the proceeds therefrom. The Company and/or its
Affiliates shall be the sole owner and beneficiary of any such
policy or policies and, as such, shall possess and may exercise
all incidents of ownership therein. A Participant's
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participation in the underwriting or other steps necessary to
acquire such policy or policies may be required by the Company
and, if required, shall not be a suggestion of any beneficial
interest in such policy or policies to such Participant or any
other person.
5.4 CLAIMS OF OTHER PERSONS. The provisions of the Plan shall
in no event be construed as giving any other person, firm or
corporation any legal or equitable right as against the Company or any
Affiliate or the officers, employees or directors of the Company or
any Affiliate, except any such rights as are specifically provided for
in the Plan or are hereafter created in accordance with the terms and
provisions of the Plan.
5.5 SEVERABILITY. The invalidity and unenforceability of any
particular provision of the Plan shall not affect any other provision
hereof, and the Plan shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
5.6 GOVERNING LAW. Except to the extent preempted by federal
law, the provisions of the Plan shall be governed and construed in
accordance with the laws of the State of Illinois.
5.7 RELATIONSHIP TO OTHER PLANS. The Plan is intended to serve
the purposes of and to be consistent with any bonus or incentive
compensation plan approved by the Committee for purposes of the Plan.
5.8 SUCCESSORS. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the
business and/or assets of the Company expressly to assume this Plan.
This Plan shall be binding upon and inure to the benefit of the
Company and any successor of or to the Company, including without
limitation any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of the Company whether
by sale, merger, consolidation, reorganization or otherwise (and such
successor shall thereafter be deemed the "Company" for the purposes of
this Plan), and the heirs, beneficiaries, executors and administrators
of each Participant. In the event that any successor to the Company
shall fail to assume this Plan, the Plan shall immediately terminate
and each Participant shall immediately receive distribution of his
Account in a single lump sum.
5.9 Withholding of Taxes. The Company and its Affiliates may
withhold or cause to be withheld from any amounts deferred or payable
under the Plan all federal, state, local and other taxes as shall be
legally required.
5.10 ELECTRONIC OR OTHER MEDIA. Notwithstanding any other
provision of the Plan to the contrary, including any provision that
requires the use of a written instrument, the Committee may establish
procedures for the use of electronic or other media in communications
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and transactions between the Plan or the Committee and Participants
and Beneficiaries. Electronic or other media may include, but are not
limited to, e-mail, the Internet, intranet systems and automated
telephonic response systems.
EXECUTED at Freeport, Illinois on this 28th day of December,
2001.
NEWELL RUBBERMAID INC.
By: ________________________________________
Title: Senior Vice President & Treasurer
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