exv10w4






Exhibit 10.4




EXECUTION VERSION




Bank of America, N.A.

Bank of America Tower at One Bryant Park

New York, NY 10036




          March 24, 2009




	 	 	 	 	 
	To:	 	Newell Rubbermaid Inc.
	 	 	Three Glenlake Parkway
	 	 	Atlanta, Georgia 30328
	 

	 	Attention:
	 	Treasurer
	 

	 	Telephone No.:
	 	(770) 418-7000
	 

	 	Facsimile No.:
	 	(770) 677-8705






Re: Call Option Transaction




          The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and
conditions of the call option transaction entered into between Bank of America, N.A. (“Dealer”) and
Newell Rubbermaid Inc. (“Counterparty”) as of the Trade Date specified below (the “Transaction”).
This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement
specified below. This Confirmation shall replace any previous agreements and serve as the final
documentation for this Transaction.




          The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc.
(“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency between the
Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms
used herein have the meanings assigned to them in the prospectus dated March 25, 2008, as
supplemented by the prospectus supplement dated March 24, 2009 (as supplemented, the “Prospectus”)
relating to the USD 300,000,000 principal amount of 5.5% Convertible Senior Notes due March 15,
2014, (the “Convertible Notes” and each USD 1,000 principal amount of Convertible Notes, a
“Convertible Note”) issued by Counterparty pursuant to an indenture dated November 1, 1995 between
Counterparty and The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New
York Trust Company, N.A. (as successor to JPMorgan Chase Bank, formerly known as The Chase
Manhattan Bank (National Association)), as trustee (the “Trustee”) (the “Base Indenture”), as
supplemented by a supplemental indenture between Counterparty and the Trustee to be dated March 30,
2009 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). In the
event of any inconsistency between the terms defined in the Prospectus, the Indenture and this
Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is
entered into on the date hereof with the understanding that (i) definitions set forth in the
Indenture which are also defined herein by reference to the Indenture and (ii) sections of the
Indenture that are referred to herein will conform to the descriptions thereof in the Prospectus.
If any such definitions in the Indenture or any such sections of the Indenture differ from the
descriptions thereof in the Prospectus, the descriptions thereof in the Prospectus will govern for
purposes of this Confirmation. The parties further acknowledge that the Indenture section numbers
used herein are based on the draft of the Indenture last reviewed by Dealer as of the date of this
Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties
will amend this Confirmation in good faith to preserve the intent of the parties. For the
avoidance of doubt, references to the Base Indenture or the Supplemental Indenture, as the case may
be, herein are references to the Base Indenture or the Supplemental Indenture, as the case may be,
as in effect on the date of its execution and if the Base Indenture or the Supplemental Indenture
is amended following its execution, any such amendment will be disregarded for purposes of this
Confirmation unless the parties agree otherwise in writing.




          Each party is hereby advised, and each such party acknowledges, that the other party has
engaged in, or refrained from engaging in, substantial financial transactions and has taken other
material actions in reliance upon the parties’ entry into the Transaction to which this
Confirmation relates on the terms and conditions set forth below.




 









 







1. This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as
to the terms of the Transaction to which this Confirmation relates. This Confirmation shall
supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master
Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form
(but without any Schedule except for the election of the laws of the State of New York as the
governing law (without reference to the choice of law doctrine)) on the Trade Date. In the event
of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation
will prevail for the purpose of the Transaction to which this Confirmation relates. The parties
hereby agree that no Transaction other than the Transaction to which this Confirmation relates
shall be governed by the Agreement.



2. The terms of the particular Transaction to which this Confirmation relates are as follows:



General Terms:




	 	 	 	 	 
	 

	 	Trade Date:
	 	March 24, 2009
	 
	 	 	 	 
	 

	 	Effective Date:
	 	The third Exchange Business Day immediately prior to the Premium Payment Date
	 
	 	 	 	 
	 

	 	Option Style:
	 	“Modified American”, as described under “Procedures for Exercise” below
	 
	 	 	 	 
	 

	 	Option Type:
	 	Call
	 
	 	 	 	 
	 

	 	Buyer:
	 	Counterparty
	 
	 	 	 	 
	 

	 	Seller:
	 	Dealer
	 
	 	 	 	 
	 

	 	Shares:
	 	The common stock of Counterparty, par value USD 1.00 per Share (Exchange symbol “NWL”)
	 
	 	 	 	 
	 

	 	Number of Options:
	 	300,000. For the avoidance of doubt, the Number of Options shall be reduced by any
Options exercised by Counterparty. In no event will the Number of Options be less than
zero.
	 
	 	 	 	 
	 

	 	Applicable Percentage:
	 	50%
	 
	 	 	 	 
	 

	 	Option Entitlement:
	 	As of any date, a number equal to the product of the Applicable Percentage and the
Conversion Rate as of such date (as defined in the Supplemental Indenture, but without
regard to any adjustments to the Conversion Rate pursuant to Section 4.04(g), Section
4.04(h) or Section 4.06 of the Supplemental Indenture), for each Convertible Note.
	 
	 	 	 	 
	 

	 	Strike Price:
	 	USD 8.6060
	 
	 	 	 	 
	 

	 	Premium:
	 	USD 30,000,000
	 
	 	 	 	 
	 

	 	Premium Payment Date:
	 	March 30, 2009
	 
	 	 	 	 
	 

	 	Exchange:
	 	The New York Stock Exchange
	 
	 	 	 	 
	 

	 	Related Exchange(s):
	 	All Exchanges






Procedures for Exercise:




2









 





	 	 	 	 	 
	 

	 	Exercise Period(s):
	 	Notwithstanding anything to the contrary in the Equity Definitions, an Exercise
Period shall occur with respect to an Option hereunder only if such Option is an
Exercisable Option (as defined below) and the Exercise Period shall be, in respect
of any Exercisable Option, the period commencing on, and including, the relevant
Conversion Date and ending on, and including, the Scheduled Valid Day immediately
preceding the first day of the relevant Settlement Averaging Period in respect of
such Conversion Date; provided that in respect of Exercisable Options relating to
Convertible Notes for which the relevant Conversion Date occurs on or after November
15, 2013, the final day of the Exercise Period shall be the Scheduled Valid Day
immediately preceding the Expiration Date.
	 
	 	 	 	 
	 

	 	Conversion Date:
	 	With respect to any conversion of Convertible Notes, the date on which the Holder
(as such term is defined in the Indenture) of such Convertible Notes satisfies all
of the requirements for conversion thereof as set forth in Section 4.02(b) of the
Supplemental Indenture.
	 
	 	 	 	 
	 

	 	Exercisable Options:
	 	In respect of each Exercise Period, a number of Options equal to the number of
Convertible Notes surrendered to Counterparty for conversion with respect to such
Exercise Period but no greater than the Number of Options.
	 
	 	 	 	 
	 

	 	Expiration Time:
	 	The Valuation Time
	 
	 	 	 	 
	 

	 	Expiration Date:
	 	March 15, 2014, subject to earlier exercise.
	 
	 	 	 	 
	 

	 	Multiple Exercise:
	 	Applicable, as described under Exercisable Options above.
	 
	 	 	 	 
	 

	 	Automatic Exercise:
	 	Applicable; and means that in respect of an Exercise Period, a number of Options not
previously exercised hereunder equal to the number of Exercisable Options shall be
deemed to be exercised on the final day of such Exercise Period for such Exercisable
Options; provided that such Options shall be deemed exercised only to the extent
that Counterparty has provided a Notice of Exercise to Dealer.
	 
	 	 	 	 
	 

	 	Notice of Exercise:
	 	Notwithstanding anything to the contrary in the Equity Definitions, in order to exercise any Exercisable
Options, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day prior to the
scheduled first day of the Settlement Averaging Period for the Exercisable Options being exercised of (i) the number of such Options,
(ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date and (iii) if Combination Settlement
is applicable, the Cash Percentage for such Exercisable Options; provided that in respect of Exercisable Options relating to
Convertible Notes with a Conversion Date occurring on or after






3









 





	 	 	 	 	 
	 

	 	 	 	November 15, 2013, such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration
Date and need only specify the information in clauses (i) and (iii) above.
	 
	 	 	 	 
	 

	 	Notice of Settlement Method:
	 	If the Cash Percentage in respect of any Exercisable Option is greater than 0%,
Combination Settlement shall apply as set forth under “Settlement Method” below and,
in order to exercise such Exercisable Option, Counterparty must (i) notify Dealer in
writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately
preceding the Settlement Averaging Period for such Exercisable Option that
Combination Settlement is applicable with respect to such Exercisable Option and
(ii) represent and warrant to Dealer in such notice that, at the time Counterparty
specified the Cash Percentage (as defined in the Supplemental Indenture) in respect
of the Convertible Notes relating to such Exercisable Option pursuant to Section
4.03(c) of the Supplemental Indenture, neither Counterparty nor any of its
affiliates was in possession of any material non-public information with respect to
the Issuer or the Shares.
	 
	 	 	 	 
	 

	 	Cash Percentage:
	 	In respect of any Exercisable Option, the Cash Percentage (as defined in the
Supplemental Indenture) applicable to the Convertible Notes relating to such
Exercisable Option.
	 
	 	 	 	 
	 

	 	Valuation Time:
	 	At the close of trading of the regular trading session on the Exchange; provided
that if the principal trading session is extended, the Calculation Agent shall
determine the Valuation Time in its reasonable discretion.
	 
	 	 	 	 
	 

	 	Market Disruption Event:
	 	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the
following:
	 
	 	 	 	 
	 

	 	 	 	“‘Market Disruption Event’ means in respect of a Share, (i) a failure by the primary
United States national or regional securities exchange or market on which Shares are
listed or admitted to trading to open for trading during its regular trading session
or (ii) the occurrence or existence for more than one half-hour period in the
aggregate on any Scheduled Valid Day for the Shares of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by
the relevant stock exchange or otherwise) in the Shares or in any options, contracts
or future contracts relating to the Shares, and such suspension or limitation occurs
or exists at any time before 1:00 p.m., New York City time.”
	 
	 	 	 	 
	Settlement Terms:	 	 
	 
	 	 	 	 
	 

	 	Settlement Method:
	 	Net Share Settlement or, if the Cash Percentage for the relevant Exercisable Options is greater than 0%,






4









 





	 	 	 	 	 
	 

	 	 	 	Combination Settlement; provided that if, in respect of any Exercisable Option, either (a) Counterparty does not provide a
Notice of Settlement Method pursuant to “Notice of Settlement Method” above or (b)
Counterparty provides such a Notice of Settlement Method but does not make the
representation required under clause (ii) of “Notice of Settlement Method” above,
then Net Share Settlement shall be deemed to apply to such Exercisable Option.
	 
	 	 	 	 
	 

	 	Net Share Settlement:
	 	If Net Share Settlement applies to any Exercisable Option exercised or deemed
exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement
Date, a number of Shares equal to the Net Shares in respect of such Exercisable
Option. In no event will the Net Shares be less than zero.
	 
	 	 	 	 
	 

	 	 	 	Dealer will deliver cash in lieu of any fractional Shares to be delivered with
respect to any Net Shares valued at the Relevant Price for the last Valid Day of the
Settlement Averaging Period.
	 
	 	 	 	 
	 

	 	Net Shares:
	 	In respect of any Exercisable Option exercised or deemed exercised, a number of
Shares equal to the sum, for each Valid Day during the Settlement Averaging Period
for such Exercisable Option, of the Daily Share Amount for such Exercisable Option
on such Valid Day.
	 
	 	 	 	 
	 

	 	Daily Share Amount:
	 	In respect of any Exercisable Option exercised or deemed exercised, for a Valid Day
during the Settlement Averaging Period for such Exercisable Option:
	 
	 	 	 	 
	 

	 	 	 	(i)   if the Daily Option Value is greater than to $25, the Daily Share Amount shall
be a number of Shares equal to (x) the Daily Option Value minus $25, divided
by (y) the Relevant Price on such Valid Day;

	 
	 	 	 	 
	 

	 	 	 	(ii)  if the Daily Option Value is less than or equal to $25, the Daily Share Amount
shall be equal to zero.

	 
	 	 	 	 
	 

	 	Daily Option Value:
	 	In respect of any Exercisable Option exercised or deemed exercised, for a Valid Day
during the Settlement Averaging Period for such Exercisable Option, an amount equal
to (x) the Option Entitlement on such Valid Day, multiplied by (y) the Relevant
Price on such Valid Day, divided by (z) the number of Valid Days in the Settlement
Averaging Period.
	 
	 	 	 	 
	 

	 	Combination Settlement:
	 	If Combination Settlement applies to any Exercisable Option exercised or deemed
exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement
Date (i) an amount of cash equal to the Combination Cash Amount for such Exercisable
Option and (ii) a number of Shares, if any, equal to the Combination Share Amount
for such Exercisable Option.






5









 





	 	 	 	 	 
	 

	 	 	 	Dealer will deliver cash in lieu of any fractional Shares to be delivered with
respect to any Combination Share Amount valued at the Relevant Price for the last
Valid Day of the Settlement Averaging Period.
	 
	 	 	 	 
	 

	 	Combination Cash Amount:
	 	In respect of any Exercisable Option exercised or deemed exercised, an amount in
cash equal to the sum, for each Valid Day during the Settlement Averaging Period for
such Exercisable Option, of (i) the Daily Share Amount for such Exercisable Option
on such Valid Day, multiplied by (ii) the Relevant Price on such Valid Day,
multiplied by (iii) the Cash Percentage for such Exercisable Option.
	 
	 	 	 	 
	 

	 	Combination Share Amount:
	 	In respect of any Exercisable Option exercised or deemed exercised, a number of
Shares equal to the sum, for each Valid Day during the Settlement Averaging Period
for such Exercisable Option, of (i) the Daily Share Amount for such Exercisable
Option on such Valid Day, multiplied by (ii) 100% minus the Cash Percentage for such
Exercisable Option.
	 
	 	 	 	 
	 

	 	Valid Day:
	 	A day on which (i) there is no Market Disruption Event and (ii) trading in the
Shares generally occurs on the Exchange or, if the Shares are not then listed on the
Exchange, on the principal other United States national or regional securities
exchange on which the Shares are then listed or, if the Shares are not then listed
on a United States national or regional securities exchange, on the principal other
market on which the Shares are then traded. If the Shares are not so listed or
traded, “Valid Day” means a Business Day.
	 
	 	 	 	 
	 

	 	Scheduled Valid Day:
	 	A day that is scheduled to be a Valid Day on the principal United States national or
regional securities exchange or market on which the Shares are listed or admitted
for trading. If the Shares are not so listed or admitted for trading, “Scheduled
Valid Day” means a Business Day.
	 
	 	 	 	 
	 

	 	Business Day:
	 	Any day other than a Saturday, Sunday or a day on which the Federal Reserve Bank of
New York is authorized or required by law or executive order to close or be closed.
	 
	 	 	 	 
	 

	 	Relevant Price:
	 	On any Valid Day, the per Share volume-weighted average price as displayed under the
heading “Bloomberg VWAP” on Bloomberg page NWL.N <equity> AQR (or any successor
thereto) in respect of the period from the scheduled opening time of the Exchange to
the Scheduled Closing Time of the Exchange on such Valid Day (or if such
volume-weighted average price is unavailable, the market value of one Share on such
Valid Day, as determined by the Calculation Agent using a volume-weighted method).






6









 





	 	 	 	 	 
	 

	 	Settlement Averaging Period:
	 	For any Exercisable Option, (x) if Counterparty has, on or prior to November 15,
2013, delivered a Notice of Exercise to Dealer with respect to such Exercisable
Option with a Conversion Date occurring prior to November 15, 2013, the forty (40)
consecutive Valid Days commencing on and including the second Scheduled Valid Day
following such Conversion Date, or (y) if Counterparty has, on or following November
15, 2013, delivered a Notice of Exercise to Dealer with respect to such Exercisable
Option with a Conversion Date occurring on or following November 15, 2013, the forty
(40) consecutive Valid Days commencing on, and including, the forty-second (42nd)
Scheduled Valid Day immediately prior to the Expiration Date.
	 
	 	 	 	 
	 

	 	Settlement Date:
	 	For any Exercisable Option, the date Shares, cash or a combination thereof will be
delivered or paid, as the case may be, with respect to the Convertible Notes related
to such Exercisable Options, under the terms of the Supplemental Indenture.
	 
	 	 	 	 
	 

	 	Settlement Currency:
	 	USD
	 
	 	 	 	 
	 

	 	Other Applicable Provisions:
	 	The provisions of Sections 9.1(c), 9.8, 9.9, 9.11, 9.12 and 10.5 of the Equity
Definitions will be applicable, except that all references in such provisions to
“Physically-settled” shall be read as references to (i) “Net Share Settled” to the
extent Net Share Settlement is applicable or (ii) “Combination Settled” to the
extent Shares will be delivered in connection an election of Combination
Settlement. “Net Share Settled” in relation to any Option means that Net Share
Settlement is applicable to that Option, and “Combination Settled” in relation to
any Option means that Combination Settlement is applicable to that Option.
	 
	 	 	 	 
	 

	 	Representation and Agreement:
	 	Notwithstanding Section 9.11 of the Equity Definitions, the parties acknowledge that
any Shares delivered to Counterparty shall be, upon delivery, subject to
restrictions and limitations arising from Counterparty’s status as issuer of the
Shares under applicable securities laws.
	 
	 	 	 	 
	3. Additional Terms applicable to the Transaction:
	 
	 	 	 	 
	   Adjustments applicable to the Transaction:
	 
	 	 	 	 
	 

	 	Potential Adjustment Events:
	 	Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment
Event” means an occurrence of any event or condition, as set forth in Section 4.04 of
the Supplemental Indenture that would result in an adjustment to the Conversion Rate of
the Convertible Notes; provided that in no event shall there be any adjustment
hereunder as a result of an adjustment to the Conversion Rate pursuant to Section
4.04(g), Section 4.04(h) or Section 4.06 of the Supplemental Indenture.






7









 





	 	 	 	 	 
	 

	 	Method of Adjustment:
	 	Calculation Agent Adjustment, and means that, notwithstanding Section 11.2(c) of the
Equity Definitions, upon any adjustment to the Conversion Rate of the Convertible Notes
pursuant to the Supplemental Indenture (other than Section 4.04(g), Section 4.04(h) and
Section 4.06 of the Supplemental Indenture), the Calculation Agent will make a
corresponding adjustment to any one or more of the Strike Price, Number of Options,
Option Entitlement and any other variable relevant to the exercise, settlement or
payment for the Transaction; provided that if the Calculation Agent in good faith
disagrees with any adjustment to the Conversion Rate pursuant to Section 4.04(c),
Section 4.04(e), Section 4.05 or Section 4.07 of the Supplemental Indenture, the
Calculation Agent will determine the corresponding adjustment to be made to any one or
more of the Strike Price, Number of Options, Option Entitlement and any other variable
relevant to the exercise, settlement or payment of the Transaction in a commercially
reasonable manner.
	 
	 	 	 	 
	Extraordinary Events applicable to the Transaction:
	 
	 	 	 	 
	 

	 	Merger Events:
	 	Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a
“Merger Event” means the occurrence of any event or condition set forth in clauses (i)
to (iv) (inclusive) of Section 4.07 of the Supplemental Indenture.
	 
	 	 	 	 
	 

	 	Tender Offers:
	 	Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a
“Tender Offer” means the occurrence of any event or condition set forth in Section
4.04(e) of the Supplemental Indenture.
	 
	 	 	 	 
	 

	 	Consequence of Merger Events/

     Tender Offers:
	 	Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the
occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a
corresponding adjustment in respect of any adjustment under the Indenture to any one or
more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement
and any other variable relevant to the exercise, settlement or payment for the
Transaction; provided, however, that such adjustment shall be made without regard to
any adjustment to the Conversion Rate for the issuance of additional shares as set
forth in Section 4.06 of the Supplemental Indenture; provided further that if, with
respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares
includes (or, at the option of a holder of Shares, may include) shares of an entity or
person not organized under the laws of the United States, any State thereof or the
District of Columbia or (ii) the Counterparty to the Transaction following such Merger
Event or Tender Offer, will not be the Issuer following such Merger Event or Tender
Offer, then Cancellation and Payment (Calculation Agent Determination) shall apply.
	 
	 	 	 	 
	 

	 	Nationalization, Insolvency or Delisting:

	 	Cancellation and Payment (Calculation Agent






8









 





	 	 	 	 	 
	 

	 	 	 	Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also
constitute a Delisting if the Exchange is located in the United States and the Shares
are not immediately re-listed, re-traded or re-quoted on any of the New York Stock
Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their
respective successors); if the Shares are immediately re-listed, re-traded or re-quoted
on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ
Global Market (or their respective successors), such exchange or quotation system shall
thereafter be deemed to be the Exchange.
	 
	 	 	 	 
	 

	 	Additional Disruption Events:	 	 
	 
	 	 	 	 
	 

	 	 Change in Law:
	 	Applicable; provided that Section 12.9(a)(ii)(X) of the Equity Definitions is hereby
amended by replacing the word “Shares” with the phrase “Hedge Positions.”
	 
	 	 	 	 
	 

	 	 Failure to Deliver:
	 	Applicable
	 
	 	 	 	 
	 

	 	 Hedging Disruption:
	 	Applicable; provided that Section 12.9(a)(v) of the Equity Definitions is hereby
modified by inserting the following two phrases at the end of such Section:
	 
	 	 	 	 
	 

	 	 	 	“For the avoidance of doubt, the term “equity price risk” shall be deemed to
include, but shall not be limited to, stock price and volatility risk. And, for the
further avoidance of doubt, any such transactions or assets referred to in phrases
(A) or (B) above must be available on commercially reasonable pricing terms.”
	 
	 	 	 	 
	 

	 	 Hedging Party:
	 	Dealer for all applicable Additional Disruption Events.
	 
	 	 	 	 
	 

	 	 Determining Party:
	 	Dealer for all applicable Extraordinary Events
	 
	 	 	 	 
	Non-Reliance:	 	Applicable
	 
	 	 	 	 
	Agreements and Acknowledgements

     Regarding Hedging Activities:	 	Applicable
	 
	 	 	 	 
	Additional Acknowledgments:	 	Applicable
	 
	 	 	 	 
	4. Calculation Agent:	 	Dealer; provided that all determinations made by the Calculation Agent shall be made
in good faith and in a commercially reasonable manner. Following any calculation by
the Calculation Agent hereunder and a prior written request by Counterparty, the
Calculation Agent shall provide Counterparty a written explanation of any
calculation or adjustment made by it including, where applicable, a description of
the methodology and the basis for such calculation or adjustment in reasonable
detail, it being understood that the Calculation Agent shall not be obligated to
disclose any proprietary models used by it for such calculation.






9









 





5. Account Details:





	 	(a)	 	Account for payments to Counterparty:




JPMorgan Chase New York

ABA: 021 000 021

Account:     Newell Rubbermaid Inc.

A/C No.:     910-2-504074



Account for delivery of Shares to Counterparty:



To be provided by Counterparty.





	 	(b)	 	Account for payments to Dealer:




Bank of America, N.A.

New York, NY

SWIFT: BOFAUS3N

Bank Routing: 026 009 593

Account Name: Bank of America

Account No. : 0012333 34172



Account for delivery of Shares from Dealer:



DTC 0773




6. Offices:



The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch
Party.



The Office of Dealer for the Transaction is: New York



Bank of America, N.A.

Bank of America Tower at One Bryant Park

New York, NY 10036




7. Notices: For purposes of this Confirmation:





	 	(a)	 	Address for notices or communications to Counterparty:




Newell Rubbermaid Inc.

Three Glenlake Parkway

Atlanta, Georgia 30328

Attention:              Treasurer

Telephone No.:     (770) 418-7000

Facsimile No.:      (770) 677-8705





	 	(b)	 	Address for notices or communications to Dealer:




Bank of America, N.A.

Bank of America Tower at One Bryant Park

New York, NY 10036

Attention:              John Servidio

Telephone No.:     (646) 855-7127

Facsimile No.:      (704) 208-2869




10









 





8. Representations and Warranties of Counterparty



The representations and warranties of Counterparty set forth in Section 1 of the Underwriting
Agreement (the “Underwriting Agreement”) dated as of March 24, 2009 among Counterparty and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities Inc. as representatives of
the Underwriters are true and correct and are hereby deemed to be repeated to Dealer as if set
forth herein. Counterparty hereby further represents and warrants to Dealer that:





	 	(a)	 	Counterparty has all necessary corporate power and authority to execute,
deliver and perform its obligations in respect of this Transaction; such execution,
delivery and performance have been duly authorized by all necessary corporate action
on Counterparty’s part; and this Confirmation has been duly and validly executed and
delivered by Counterparty and constitutes its valid and binding obligation,
enforceable against Counterparty in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement is
sought in a proceeding at law or in equity) and except that rights to indemnification
and contribution hereunder may be limited by federal or state securities laws or
public policy relating thereto.
	 
	 	(b)	 	Neither the execution and delivery of this Confirmation nor the incurrence or
performance of obligations of Counterparty hereunder will conflict with or result in a
breach of the certificate of incorporation or by-laws (or any equivalent documents) of
Counterparty, or any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any agreement or
instrument to which Counterparty or any of its subsidiaries is a party or by which
Counterparty or any of its subsidiaries is bound or to which Counterparty or any of
its subsidiaries is subject, or constitute a default under, or result in the creation
of any lien under, any such agreement or instrument.
	 
	 	(c)	 	No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required in connection with the execution,
delivery or performance by Counterparty of this Confirmation, except such as have been
obtained or made and such as may be required under the Securities Act of 1933, as
amended (the “Securities Act”) or state securities laws.
	 
	 	(d)	 	Counterparty is not and will not be required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
	 
	 	(e)	 	It is an “eligible contract participant” (as such term is defined in Section
1a(12) of the Commodity Exchange Act, as amended (the “CEA”)) because one or more of
the following is true:
	 
	 	 	 	Counterparty is a corporation, partnership, proprietorship, organization, trust or
other entity and:






	 	(A)	 	Counterparty has total assets in excess of USD 10,000,000;
	 
	 	(B)	 	the obligations of Counterparty hereunder are guaranteed, or
otherwise supported by a letter of credit or keepwell, support or other
agreement, by an entity of the type described in Section 1a(12)(A)(i) through
(iv), 1a(12)(A)(v)(I), 1a(12)(A)(vii) or 1a(12)(C) of the CEA; or
	 
	 	(C)	 	Counterparty has a net worth in excess of USD 1,000,000 and
has entered into this Agreement in connection with the conduct of
Counterparty’s business or to manage the risk associated with an asset or
liability owned or incurred or




11









 






	 	 	 	reasonably likely to be owned or incurred by Counterparty in the conduct of
Counterparty’s business.






	 	(f)	 	Each of it and its affiliates is not, on the date hereof, in possession of
any material non-public information with respect to Counterparty.





9. Other Provisions:





	 	(a)	 	Opinions. Counterparty shall deliver to Dealer, on or prior to the
Premium Payment Date, an opinion of counsel, dated as of the Premium Payment Date,
with respect to the matters set forth in Sections 8(a) through (c) of this
Confirmation, and delivery of such opinion to Dealer shall be a condition precedent
for the purposes of Section 2(a)(iii) of the Agreement with respect to each obligation
of Dealer under Section 2(a)(i) of the Agreement.
	 
	 	(b)	 	Repurchase Notices. Counterparty shall, on any day on which
Counterparty effects any repurchase of Shares, promptly give Dealer a written notice
of such repurchase (a “Repurchase Notice”) on such day if following such repurchase,
the number of outstanding Shares as determined on such day is (i) less than 250
million (in the case of the first such notice) or (ii) thereafter more than 14 million
less than the number of Shares included in the immediately preceding Repurchase
Notice. Counterparty agrees to indemnify and hold harmless Dealer and its affiliates
and their respective officers, directors, employees, affiliates, advisors, agents and
controlling persons (each, an “Indemnified Person”) from and against any and all
losses (including losses relating to Dealer’s hedging activities as a consequence of
becoming, or of the risk of becoming, a Section 16 “insider”, including without
limitation, any forbearance from hedging activities or cessation of hedging activities
and any losses in connection therewith with respect to this Transaction), claims,
damages, judgments, liabilities and expenses (including reasonable attorney’s fees),
joint or several, which an Indemnified Person may become subject to, as a result of
Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in
the manner specified in this paragraph, and to reimburse, within 30 days, upon written
request, each of such Indemnified Persons for any reasonable legal or other expenses
incurred in connection with investigating, preparing for, providing testimony or other
evidence in connection with or defending any of the foregoing. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against the Indemnified Person as a result of
Counterparty’s failure to provide Dealer with a Repurchase Notice in accordance with
this paragraph, such Indemnified Person shall promptly notify Counterparty in writing,
and Counterparty, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified Person
and any others Counterparty may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. Counterparty shall not be
liable for any settlement of any proceeding contemplated by this paragraph that is
effected without its written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Counterparty shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened proceeding
contemplated by this paragraph that is in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of such
proceeding on terms reasonably satisfactory to such Indemnified Person. If the
indemnification provided for in this paragraph is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified Person
as a result of





12









 






	 	 	 	such losses, claims, damages or liabilities. The remedies provided for in this
paragraph (b) are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any Indemnified Party at law or in equity. The
indemnity and contribution agreements contained in this paragraph shall remain
operative and in full force and effect regardless of the termination of this
Transaction.
	 
	 	(c)	 	Regulation M. Counterparty is not on the date hereof engaged in a
distribution, as such term is used in Regulation M under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), of any securities of Counterparty, other
than (i) a distribution meeting the requirements of the exceptions set forth in Rules
101(b)(10) and 102(b)(7) of Regulation M and (ii) the distribution of the Convertible
Notes. Counterparty shall not, until the second Scheduled Trading Day immediately
following the Effective Date, engage in any such distribution.
	 
	 	(d)	 	No Manipulation. Counterparty is not entering into this Transaction
to create actual or apparent trading activity in the Shares (or any security
convertible into or exchangeable for the Shares) or to raise or depress or otherwise
manipulate the price of the Shares (or any security convertible into or exchangeable
for the Shares) or otherwise in violation of the Exchange Act.
	 
	 	(e)	 	Transfer or Assignment. (i) Counterparty shall have the right to
transfer or assign its rights and obligations hereunder with respect to all, but not
less than all, of the Options hereunder (such Options, the “Transfer Options”);
provided that such transfer or assignment shall be subject to reasonable conditions
that Dealer may impose, including but not limited, to the following conditions:






(A) With respect to any Transfer Options, Counterparty shall not be released
from its notice and indemnification obligations pursuant to Section 9(b) or any
obligations under Section 9(n) or 9(s) of this Confirmation;




(B) Any Transfer Options shall only be transferred or assigned to a third party
that is a United States person (as defined in the Internal Revenue Code of
1986, as amended);




(C) Such transfer or assignment shall be effected on terms, including any
reasonable undertakings by such third party (including, but not limited to, an
undertaking with respect to compliance with applicable securities laws in a
manner that, in the reasonable judgment of Dealer, will not expose Dealer to
material risks under applicable securities laws) and execution of any
documentation and delivery of legal opinions with respect to securities laws
and other matters by such third party and Counterparty, as are requested and
reasonably satisfactory to Dealer;




(D) Dealer will not, as a result of such transfer and assignment, be required
to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of
the Agreement greater than an amount that Dealer would have been required to
pay to Counterparty in the absence of such transfer and assignment;




(E) An Event of Default, Potential Event of Default or Termination Event will
not occur as a result of such transfer and assignment;




(F) Without limiting the generality of clause (B), Counterparty shall cause the
transferee to make such Payee Tax Representations and to provide such tax
documentation as may be reasonably requested by Dealer to permit Dealer to
determine that results described in clauses (D) and (E) will not occur upon or
after such transfer and assignment; and




(G) Counterparty shall be responsible for all reasonable costs and expenses,
including reasonable counsel fees, incurred by Dealer in connection with such
transfer or assignment.



13









 






(ii) Dealer may, without Counterparty’s consent, transfer or assign all or any part
of its rights or obligations under the Transaction to any third party with a rating
for its long term, unsecured and unsubordinated indebtedness equal to or better
than the greater of (x) the credit rating of Dealer at the time of the transfer and
(y) A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by
Moody’s Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to
rate such debt, at least an equivalent rating or better by a substitute rating
agency mutually agreed by Counterparty and Dealer. If at any time at which (1) the
Section 16 Percentage exceeds 7.5%, (2) the Option Equity Percentage exceeds 14.5%,
or (3) the Share Amount exceeds the Post-Effective Limit (if any applies), Dealer
is unable after using its commercially reasonable efforts to effect a transfer or
assignment of Options to a third party on pricing terms reasonably acceptable to
Dealer and within a time period reasonably acceptable to Dealer such that (1) the
Section 16 Percentage will be equal to or less than 7.5%, (2) the Option Equity
Percentage will be equal to or less than 14.5%, and (3) the Share Amount will be
equal to or less than any such Post-Effective Limit, then Dealer may designate any
Exchange Business Day as an Early Termination Date with respect to a portion of the
Transaction (the “Terminated Portion”), such that following such partial
termination (1) the Section 16 Percentage will be equal to or less than 7.5%, (2)
the Option Equity Percentage will be equal to or less than 14.5%, and (3) the Share
Amount will be equal to or less than such Post-Effective Limit. In the event that
Dealer so designates an Early Termination Date with respect to a Terminated
Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (1)
an Early Termination Date had been designated in respect of a Transaction having
terms identical to this Transaction and a Number of Options equal to the number of
Options underlying the Terminated Portion, (2) Counterparty shall be the sole
Affected Party with respect to such partial termination and (3) the Terminated
Portion shall be the sole Affected Transaction (and, for the avoidance of doubt,
the provisions of Section 9(l) shall apply to any amount that is payable by Dealer
to Counterparty pursuant to this sentence as if Counterparty was not the Affected
Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a
percentage, (A) the numerator of which is the number of Shares that Dealer and each
person subject to aggregation of Shares with Dealer under Section 13 or Section 16
of the Exchange Act and rules promulgated thereunder directly or indirectly
beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and
rules promulgated thereunder) and (B) the denominator of which is the number of
Shares outstanding. The “Option Equity Percentage” as of any day is the fraction,
expressed as a percentage, (A) the numerator of which is the product of (x) the
Number of Options and (y) the Option Entitlement and (B) the denominator of which
is the number of Shares outstanding. The “Share Amount” as of any day is the
number of Shares that Dealer and any person whose ownership position would be
aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under
any law, rule, regulation or regulatory order that for any reason becomes
applicable to ownership of Shares after the Trade Date (“Applicable Laws”), owns,
beneficially owns, constructively owns, controls, holds the power to vote or
otherwise meets a relevant definition of ownership of under the Applicable Laws, as
determined by Dealer in its reasonable discretion. The “Post-Effective Limit” means
(x) the minimum number of Shares that would give rise to reporting or registration
obligations or other requirements (including obtaining prior approval from any
person or entity) of a Dealer Person, or would result in an adverse effect on a
Dealer Person, under the Applicable Laws, as determined by Dealer in its reasonable
discretion, minus (y) 1% of the number of Shares outstanding.




(iii) Notwithstanding any other provision in this Confirmation to the contrary
requiring or allowing Dealer to purchase, sell, receive or deliver any shares or
other securities, or make or receive any payment in cash, to or from Counterparty,
Dealer may designate any of its affiliates to purchase, sell, receive or deliver
such shares or other securities, or to make or receive such payment in cash, and
otherwise to perform Dealer’s obligations in respect of this Transaction and any
such designee may assume such obligations. Dealer



14









 







shall be discharged of its obligations to Counterparty to the extent of any such
performance.




	 	(f)	 	Staggered Settlement. If upon advice of counsel with respect to
applicable legal and regulatory requirements, including any requirements relating to
Dealer’s hedging activities hereunder, Dealer reasonably determines that it would not
be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of
the Shares to be delivered by Dealer on the Settlement Date for the Transaction,
Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal
Settlement Date”), elect to deliver the Shares on two or more dates (each, a
“Staggered Settlement Date”) as follows:






	 	(a)	 	in such notice, Dealer will specify to Counterparty the
related Staggered Settlement Dates (the first of which will be such Nominal
Settlement Date and the last of which will be no later than the twentieth
(20th) Exchange Business Day following such Nominal Settlement Date) and the
number of Shares that it will deliver on each Staggered Settlement Date;
	 
	 	(b)	 	the aggregate number of Shares that Dealer will deliver to
Counterparty hereunder on all such Staggered Settlement Dates will equal the
number of Shares that Dealer would otherwise be required to deliver on such
Nominal Settlement Date; and
	 
	 	(c)	 	if the Net Share Settlement terms set forth above were to
apply on the Nominal Settlement Date, then the Net Share Settlement terms will
apply on each Staggered Settlement Date, except that the Net Shares will be
allocated among such Staggered Settlement Dates as specified by Dealer in the
notice referred to in clause (a) above.






	 	(g)	 	Reserved.
	 
	 	(h)	 	Dividends. If at any time during the period from and including the
Effective Date, to but excluding the Expiration Date, (i) an ex-dividend date for a
regular quarterly cash dividend occurs with respect to the Shares (an “Ex-Dividend
Date”), and that dividend is less than the Regular Dividend on a per Share basis or
(ii) if no Ex-Dividend date for a regular quarterly cash dividend occurs with respect
to the Shares in any quarterly dividend period of Counterparty, then the Calculation
Agent will make a corresponding adjustment to any one or more of the Strike Price,
Number of Options, Option Entitlement and/or any other variable relevant to the
exercise, settlement or payment for the Transaction to preserve the fair value of the
Options to Dealer after taking into account such dividend or lack thereof. “Regular
Dividend” shall mean USD 0.05 per Share per quarter. Upon any adjustment to the
Initial Dividend Threshold (as defined in the Supplemental Indenture) for the
Convertible Notes pursuant to Section 4.04(d)(i) or Section 4.07 of the Supplemental
Indenture, the Calculation Agent will make a corresponding adjustment to the Regular
Dividend for the Transaction.
	 
	 	(i)	 	Additional Termination Events. Notwithstanding anything to the
contrary in this Confirmation if an event of default with respect to Counterparty
shall occur under the terms of the Convertible Notes as set forth in Section 5.01 of
the Supplemental Indenture or Section 501 of the Base Indenture, then such event of
default shall constitute an Additional Termination Event applicable to the Transaction
and, with respect to such event of default (A) Counterparty shall be deemed to be the
sole Affected Party and the Transaction shall be the sole Affected Transaction and (B)
Dealer shall be the party entitled to designate an Early Termination Date pursuant to
Section 6(b) of the Agreement.




15









 












	 	(j)	 	Amendments to Equity Definitions. (i) Section 12.6(a)(ii) of the
Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the
word “or” after the word “official” and inserting a comma therefor, and (2) deleting
the semi-colon at the end of subsection (B) thereof and inserting the following words
therefor “or (C) at Dealer’s option, the occurrence of any of the events specified in
Section 5(a)(vii)(1) through (9) of the ISDA Master Agreement with respect to that
Issuer.”






(ii) Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1)
replacing “either party may elect” with “Dealer may elect” and (2) replacing
“notice to the other party” with “notice to Counterparty” in the first sentence of
such section.




	 	(k)	 	Setoff. In addition to and without limiting any rights of set-off
that a party hereto may have as a matter of law, pursuant to contract or otherwise,
upon the occurrence of an Early Termination Date, Dealer (and only Dealer)  shall have
the right to set off any obligation that it may have to Counterparty under this
Confirmation, including without limitation any obligation to make any payment of cash
or delivery of Shares to Counterparty, against any obligation Counterparty may have to
Dealer under any other agreement between Dealer and Counterparty relating to Shares
(each such contract or agreement, a “Separate Agreement”), including without
limitation any obligation to make a payment of cash or a delivery of Shares or any
other property or securities. For this purpose, Dealer shall be entitled to convert
any obligation (or the relevant portion of such obligation) denominated in one
currency into another currency at the rate of exchange at which it would be able to
purchase the relevant amount of such currency, and to convert any obligation to
deliver any non-cash property into an obligation to deliver cash in an amount
calculated by reference to the market value of such property as of the Early
Termination Date, as determined by the Calculation Agent in its sole discretion;
provided that in the case of a set-off of any obligation to release or deliver assets
against any right to receive fungible assets, such obligation and right shall be set
off in kind and; provided further that in determining the value of any obligation to
deliver Shares, the value at any time of such obligation shall be determined by
reference to the market value of the Shares at such time, as determined in good faith
by the Calculation Agent. If an obligation is unascertained at the time of any such
set-off, the Calculation Agent may in good faith estimate the amount or value of such
obligation, in which case set-off will be effected in respect of that estimate, and
the relevant party shall account to the other party at the time such obligation or
right is ascertained. For the avoidance of doubt and notwithstanding anything to the
contrary provided in this Section 9(k), in the event of bankruptcy or liquidation of
either Counterparty or Dealer neither party shall have the right to set off any
obligation that it may have to the other party under this Transaction against any
obligation such other party may have to it, whether arising under the Agreement, this
Confirmation or any other agreement between the parties hereto, by operation of law or
otherwise.
	 
	 	(l)	 	Alternative Calculations and Payment on Early Termination and on Certain
Extraordinary Events. If in respect of this Transaction, an amount is payable by
Dealer to Counterparty (i) pursuant to Section 12.7 or Section 12.9 of the Equity
Definitions or (ii) pursuant to Section 6(d)(ii) of the Agreement (a “Payment
Obligation”), Counterparty may request Dealer to satisfy any such Payment Obligation
by the Share Termination Alternative (as defined below) (except that Counterparty
shall not make such an election in the event of a Nationalization, Insolvency, a
Merger Event or Tender Offer, in each case, in which the consideration to be paid to
holders of Shares consists solely of cash, or an Event of Default in which
Counterparty is the Defaulting Party or a Termination Event in which Counterparty is
the Affected Party, other than an Event of Default of the type described in Section
5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the
type described in Section 5(b) of the Agreement in each case that resulted from an
event or events outside Counterparty’s control) and shall give irrevocable telephonic
notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than
12:00 p.m. New York local time on the Merger Date, the




16









 












Tender Offer Date, the Announcement Date (in the case of Nationalization,
Insolvency or Delisting), the Early Termination Date or date of cancellation, as
applicable; provided that if Counterparty does not validly request Dealer to
satisfy its Payment Obligation by the Share Termination Alternative, Dealer shall
have the right, in its sole discretion, to satisfy its Payment Obligation by the
Share Termination Alternative, notwithstanding Counterparty’s election to the
contrary. In calculating any amounts under Section 6(e) of the Agreement,
notwithstanding anything to the contrary in the Agreement, (1) separate amounts
shall be calculated as set forth in Section 6(e) with respect to (i) this
Transaction and (ii) all other Transactions, and (2) such separate amounts shall be
payable pursuant to Section 6(d)(ii) of the Agreement.



	 	 	 	 	 
	 

	 	Share Termination Alternative:
	 	Applicable and means that Dealer
shall deliver to Counterparty the Share Termination Delivery Property on, or
within a commercially reasonable period of time after, the date when the
Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of
the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as
applicable (the “Share Termination Payment Date”), in satisfaction of the
Payment Obligation in the manner reasonably requested by Counterparty free of
payment.
	 
	 	 	 	 
	 

	 	Share Termination Delivery Property:
	 	A number of Share Termination
Delivery Units, as calculated by the Calculation Agent, equal to the Payment
Obligation divided by the Share Termination Unit Price. The Calculation Agent
shall adjust the Share Termination Delivery Property by replacing any
fractional portion of a security therein with an amount of cash equal to the
value of such fractional security based on the values used to calculate the
Share Termination Unit Price.
	 
	 	 	 	 
	 

	 	Share Termination Unit Price:
	 	The value to Dealer of property
contained in one Share Termination Delivery Unit, as determined by the
Calculation Agent in its discretion by commercially reasonable means and
notified by the Calculation Agent to Dealer at the time of notification of the
Payment Obligation. For the avoidance of doubt, the parties agree that in
determining the Share Termination Delivery Unit Price the Calculation Agent
may consider the purchase price paid in connection with the purchase of Share
Termination Delivery Property.
	 
	 	 	 	 
	 

	 	Share Termination Delivery Unit:
	 	One Share or, if a Merger Event
has occurred and a corresponding adjustment to this Transaction has been made,
a unit consisting of the number or amount of each type of property received by
a holder of one Share (without consideration of any






17









 





	 	 	 	 	 
	 

	 	 	 	requirement to pay cash or other
consideration in lieu of fractional
amounts of any securities) in such Merger
Event, as determined by the Calculation
Agent.
	 
	 	 	 	 
	 

	 	Failure to Deliver:
	 	Applicable
	 
	 	 	 	 
	 

	 	Other applicable provisions:
	 	If Share Termination Alternative is
applicable, the provisions of Sections 9.8, 9.9, 9.11, 9.12 and 10.5 (as
modified above) of the Equity Definitions will be applicable, except that all
references in such provisions to “Physically-settled” shall be read as
references to “Share Termination Settled” and all references to “Shares” shall
be read as references to “Share Termination Delivery Units”. “Share
Termination Settled” in relation to this Transaction means that Share
Termination Alternative is applicable to this Transaction.







	 	(m)	 	Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect of
any suit, action or proceeding relating to this Transaction. Each party (i) certifies
that no representative, agent or attorney of either party has represented, expressly
or otherwise, that such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the
other party have been induced to enter into this Transaction, as applicable, by, among
other things, the mutual waivers and certifications provided herein.
	 
	 	(n)	 	Registration. Counterparty hereby agrees that if, in the good faith
reasonable judgment of Dealer, the Shares (“Hedge Shares”) acquired by Dealer for the
purpose of hedging its obligations pursuant to this Transaction cannot be sold in the
public market by Dealer without registration under the Securities Act, Counterparty
shall, at its election, either (i) in order to allow Dealer to sell the Hedge Shares
in a registered offering, make available to Dealer an effective registration statement
under the Securities Act and enter into an agreement, in form and substance
satisfactory to Dealer, substantially in the form of an underwriting agreement for a
registered secondary offering; provided, however, that if Dealer, in its sole
reasonable discretion, is not satisfied with access to due diligence materials, the
results of its due diligence investigation, or the procedures and documentation for
the registered offering referred to above, then clause (ii) or clause (iii) of this
paragraph shall apply at the election of Counterparty, (ii) in order to allow Dealer
to sell the Hedge Shares in a private placement, enter into a private placement
agreement substantially similar to private placement purchase agreements customary for
private placements of equity securities for an issuance of its size, in form and
substance satisfactory to Dealer (in which case, the Calculation Agent shall make any
adjustments to the terms of this Transaction that are necessary, in its reasonable
judgment, to compensate Dealer for any discount from the public market price of the
Shares incurred on the sale of Hedge Shares in a private placement), or (iii) purchase
the Hedge Shares from Dealer at the Reference Price on such Exchange Business Days,
and in the amounts, requested by Dealer.
	 
	 	(o)	 	Tax Disclosure. Effective from the date of commencement of
discussions concerning the Transaction, Counterparty and each of its employees,
representatives, or other agents may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the Transaction and all
materials of any kind (including opinions or other tax










18









 












	 		 	analyses) that are provided to Counterparty relating to such tax treatment and tax
structure.
	 
	 	(p)	 	Right to Extend. Dealer may postpone, in whole or in part, any
Settlement Date or any other date of valuation, payment or delivery by Dealer or add
additional Settlement Dates or any other date of valuation, payment or delivery, with
respect to some or all of the Options hereunder, if Dealer reasonably determines, in
its discretion, that such extension is reasonably necessary or appropriate to preserve
Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity
conditions (but only if there is a material decrease in liquidity relative to Dealer’s
expectations on the Trade Date) or to enable Dealer to effect purchases or sales of
Shares in connection with its hedging, hedge unwind or settlement activity hereunder
in a manner that would, if Dealer were Counterparty or an affiliated purchaser of
Counterparty, be in compliance with applicable legal, regulatory or self-regulatory
requirements, or with related policies and procedures applicable to Dealer.
	 
	 	(q)	 	Status of Claims in Bankruptcy. Dealer acknowledges and agrees that
this Confirmation is not intended to convey to Dealer rights against Counterparty with
respect to the Transaction that are senior to the claims of common stockholders of
Counterparty in any United States bankruptcy proceedings of Counterparty; provided
that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue
remedies in the event of a breach by Counterparty of its obligations and agreements
with respect to the Transaction; provided, further, that nothing herein shall limit or
shall be deemed to limit Dealer’s rights in respect of any transactions other than the
Transaction.
	 
	 	(r)	 	Securities Contract; Swap Agreement. The parties hereto intend for:
(a) the Transaction to be a “securities contract” and a “swap agreement” as defined in
the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), and
the parties hereto to be entitled to the protections afforded by, among other
Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the
Bankruptcy Code; (b) a party’s right to liquidate the Transaction and to exercise any
other remedies upon the occurrence of any Event of Default under the Agreement with
respect to the other party to constitute a “contractual right” as described in the
Bankruptcy Code; and (c) each payment and delivery of cash, securities or other
property hereunder to constitute a “margin payment” or “settlement payment” and a
“transfer” as defined in the Bankruptcy Code.
	 
	 	(s)	 	Additional Provisions. Counterparty covenants and agrees that, as
promptly as practicable following the public announcement of any consolidation, merger
and binding share exchange to which Counterparty is a party, or any sale of all or
substantially all of Counterparty’s assets, in each case pursuant to which the Shares
will be converted into cash, securities or other property, Counterparty shall notify
Dealer in writing of the types and amounts of consideration that holders of Shares
have elected to receive upon consummation of such transaction or event (the date of
such notification, the “Consideration Notification Date”); provided that in no event
shall the Consideration Notification Date be later than the date on which such
transaction or event is consummated.
	 
	 	(t)	 	Receipt or Delivery of Cash. For the avoidance of doubt, other than
payment of the Premium by Counterparty, nothing in this Confirmation shall be
interpreted as requiring Counterparty to cash settle this Transaction, except in
circumstances where such cash settlement is within Counterparty’s control (including,
without limitation, where Counterparty elects Combination Settlement, where
Counterparty elects to receive or deliver cash, or where Counterparty fails timely to
elect the Share Termination Alternative) or in those circumstances in which holders of
the Shares would also receive cash.





19









 






	 	(u)	 	Special Provisions for Counterparty Payments. The parties hereby
agree that, notwithstanding anything to contrary in this Confirmation, the Agreement
or the Equity Definitions, in the event that an Early Termination Date occurs or is
designated with respect to the Transaction as a result of a Termination Event and, as
a result, Counterparty owes to Dealer an amount calculated under Section 6(e) of the
Agreement, such amount shall be deemed to be zero.





20









 





          Counterparty hereby agrees (a) to check this Confirmation carefully and immediately upon
receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm
that the foregoing (in the exact form provided by Dealer) correctly sets forth the terms of the
agreement between Dealer and Counterparty with respect to the Transaction, by manually signing this
Confirmation or this page hereof as evidence of agreement to such terms and providing the other
information requested herein and immediately returning an executed copy to John Servidio, Bank of
America, N.A., Facsimile No. (704) 208-2869.




Very truly yours,




	 	 	 	 	 	 	 
	 	 	Bank of America, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Voris
 


	 	 
	 

	 	Authorized Signatory	 	 
	 

	 	Name: Michael Voris	 	 







Accepted and confirmed

as of the Trade Date:




Newell Rubbermaid Inc.



	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dale L. Metz
	 	 
	 

	 	 	 	 	 	 
	 	 	Authorized Signatory	 	 
	 	 	Name: Dale L. Metz