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As filed with the Securities and Exchange Commission on October 10, 1995
Registration No. 33-54211
================================================================================
SECURITIES AND EXCHANGE COMMISSION
----------------
AMENDMENT NO. 4 ON FORM S-2 TO
REGISTRATION STATEMENT
ON FORM S-1
UNDER
THE SECURITIES ACT OF 1933
----------------
WAXMAN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
5074
(Primary Standard Industrial Classification Code Number)
34-0899894
(I.R.S. Employer Identification Number)
24460 Aurora Road
Bedford Heights, Ohio 44146
(216) 439-1830
(Address, including zip code, and telephone number,
including area code, of registrant's principal offices)
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ARMOND WAXMAN
24460 Aurora Road
Bedford Heights, Ohio 44146
(216) 439-1830
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
----------
Copies to:
SCOTT M. ZIMMERMAN, ESQ.
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box: /X/
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said section 8(a),
may determine.
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WAXMAN INDUSTRIES, INC.
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
ITEM OF FORM S-2 PROSPECTUS CAPTION OR LOCATION
---------------- ------------------------------
<S> <C>
1. Forepart of the Registration Statement Outside Front Cover Page of Prospectus
and Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Available Information; Inside Front Cover and
Page of Prospectus Outside Back Cover Pages of Prospectus
3. Summary Information, Risk Factors and Prospectus Summary; Incorporation of Certain
Ratio of Earnings to Fixed Charges Information by Reference; Risk Factors.
4. Use of Proceeds Inside Front Cover Page of Prospectus; Prospectus
Summary; Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Selling Security Holders; Plan of Distribution
8. Plan of Distribution and Underwriting Outside Front Cover Page of Prospectus; Plan of
Distribution
9. Description of Securities to be Registered Outside Front Cover Page of Prospectus; Prospectus
Summary; Description of Warrants; Description of
Capital Stock
10. Interests of Named Experts and Counsel Legal Matters
11. Information with Respect to the Registrant Outside Front Cover Page of Prospectus; Available
Information; Incorporation of Certain Information by
Reference; Prospectus Summary; Risk Factors
12. Incorporation of Certain Information by Available Information; Incorporation of Certain
Reference Information by Reference
13. Disclosure on Commission Position on
Indemnification of Securities Act
Liabilities Not Applicable
</TABLE>
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SUBJECT TO COMPLETION, DATED OCTOBER 10, 1995
PROSPECTUS
WAXMAN INDUSTRIES, INC.
2,950,000 WARRANTS TO PURCHASE SHARES OF COMMON STOCK
2,950,000 SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE
This Prospectus relates to the offer and sale of 2,950,000 warrants
("Warrants") to purchase shares of common stock, par value $.01 per share (the
"Common Stock"), of Waxman Industries, Inc. (the "Company") and the 2,950,000
shares of Common Stock, subject to adjustment, issuable upon exercise of the
Warrants. The Warrants and shares of Common Stock referenced above offered
hereby are sometimes collectively referred to herein as the "Securities." The
Securities will be sold by the holders thereof (the "Selling Security Holders").
See "Selling Security Holders."
On May 20, 1994, the Company issued Series A 12 3/4% Senior Secured
Deferred Coupon Notes Due 2004 having an initial accredited value of $50,000,000
(the "Notes") together with the Warrants in exchange for $50,000,000 aggregate
principal amount of the Company's then outstanding 13 3/4% Senior Subordinated
Notes due June 1, 1999 (the "Senior Subordinated Notes") pursuant to a private
exchange offer (the "Private Exchange Offer") which was a part of a series of
interrelated transactions (the "Reorganization"). In addition to the Private
Exchange Offer, the components of the Reorganization included (i) the
solicitation of the consents of the holders of the Company's 12.25% Fixed Rate
Senior Secured Notes due September 1, 1998 and Floating Rate Senior Secured
Notes due September 1, 1998 to certain waivers of and the adoption of certain
amendments to the indenture governing such Senior Secured Notes, (ii) the
establishment of a $55 million revolving credit facility and a $15 million term
loan, (iii) the solicitation of the consents of the holders of the Company's
Senior Subordinated Notes to certain waivers of and the adoption of certain
amendments to the indenture governing the Senior Subordinated Notes and (iv) the
repayment of the borrowings under the Company's then existing domestic revolving
credit facilities.
Each Warrant entitles the holder thereof to purchase one share of
Common Stock, subject to adjustment in certain circumstances discussed below, at
a cash exercise price of $2.45 per share, subject to adjustment in certain
circumstances discussed below. The Company would receive all of the proceeds
from the exercise of the Warrants. The Warrants are currently exercisable and
expire on June 1, 2004. The Warrants were originally issued by the Company in a
private placement to certain institutional investors. There is presently no
active trading market for the Warrants and there can be no assurance that one
will develop. The Common Stock is traded on the New York Stock Exchange, Inc.
(the "NYSE") under the symbol "WAX." On October 5, 1995, the last reported
sales price per share of Common Stock, as reported by the NYSE, was $1 3/8
The Securities are being offered for the accounts of the Selling
Security Holders. See "Selling Security Holders." The offer and sale of the
Securities is being registered under the Registration Statement of which this
Prospectus forms a part in order to satisfy certain obligations of the Company
contained in the Registration Rights Agreement (the "Equity Registration Rights
Agreement"), dated as of May 20, 1994, between the Company and The Huntington
National Bank, as Warrant Agent (the "Warrant Agent") under the Warrant
Agreement dated as of May 20, 1994 between such Warrant Agent and the Company,
on behalf of the original purchasers of the Warrants. The Company has agreed to
pay all expenses of this offering but will not receive any of the proceeds from
the sale of Securities being offered hereby. The aggregate proceeds to the
Selling Security Holders from the sale of the Securities will be the purchase
price of the Securities sold, less the aggregate underwriting fees, discounts
and commissions, if any. See "Plan of Distribution."
The Selling Security Holders directly, through agents designated from
time to time or through dealers or underwriters also to be designated, may sell
the Securities from time to time on terms to be determined at the time of sale.
To the extent required, the specific Securities to be sold, the names of the
Selling Security Holders, the purchase price, the public offering price, the
names of any such agents, dealers or underwriters and any applicable commissions
or discount with respect to a particular offer will be set forth in an
accompanying Prospectus supplement (or, if required, a post-effective amendment
to the Registration Statement of which this Prospectus forms a part). The
distribution of the Securities of the Selling Security Holders may be effected
in one or more transactions that may take place on the NYSE or the over-
<PAGE> 4
the-counter market, including ordinary broker's transactions, privately
negotiated transactions or through sales to one or more dealers for resale of
such securities as principals, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices.
Usual and customary or specifically negotiated brokerage fees, commissions or
discounts may be paid by the Selling Security Holders in connection with such
sales.
The Selling Security Holders and any broker-dealers, agents or
underwriters that participate with the Selling Security Holders in the
distribution of the Securities may be deemed to be "Underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Act"), and any
commissions received by them and any profit on the resale of the Securities
purchased by them may be deemed to be underwriting commissions or discounts
under the Act. See "Plan of Distribution" for indemnification arrangements."
PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED HEREBY SHOULD
CAREFULLY CONSIDER THE MATTERS SET FORTH UNDER "RISK FACTORS."
-----------------------------------------
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES HAVE NOT BEEN AND WILL NOT BE QUALIFIED FOR SALE UNDER
THE SECURITIES LAWS OF CANADA OR ANY PROVINCE OR TERRITORY OF CANADA. THE
SECURITIES ARE NOT BEING OFFERED FOR SALE AND MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN CANADA, OR TO ANY RESIDENT THEREOF, IN VIOLATION OF
THE SECURITIES LAWS OF CANADA OR ANY PROVINCE OR TERRITORY OF CANADA.
THIS DOCUMENT MAY NOT BE PASSED ON IN THE UNITED KINGDOM TO ANY PERSON
UNLESS THAT PERSON IS OF A KIND DESCRIBED IN ARTICLE 9(3) OF THE FINANCIAL
SERVICES ACT 1986 (INVESTMENT ADVERTISEMENTS) (EXEMPTIONS) ORDER 1988 OR IS A
PERSON TO WHOM THIS DOCUMENT MAY OTHERWISE LAWFULLY BE ISSUED OR PASSED ON.
NOTICE TO NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A
LICENSE HAS BEEN FILED UNDER CHAPTER 421-B WITH THE STATE OF NEW HAMPSHIRE NOR
THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN
THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT
ANY DOCUMENT FILED UNDER CHAPTER 421-B IS TRUE, COMPLETE AND NOT MISLEADING.
NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE
FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN
ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL
TO, ANY PERSON, SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE
MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT ANY REPRESENTATION
INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.
-----------------------------------------
THE DATE OF THIS PROSPECTUS IS _________, 1995
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files periodic reports, proxy statements and other
information with the Commission. The Registration Statement, as well as such
periodic reports, proxy statements and other information, can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549; Suite 1400, Northwest
Atrium Center, 500 West Madison Street, Chicago, Illinois 60661; and 7 World
Trade Center, New York, New York 10048. Copies of such material can also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Company's common
stock is listed on the NYSE. Reports, proxy statements and other information may
also be inspected at the offices of the NYSE, 20 Broad Street, New York, New
York 10005.
The Company has filed a Registration Statement on Form S-2 (together
with all amendments thereto referred to herein as the "Registration Statement")
under the Act, with the Commission covering the securities being offered by this
Prospectus. This Prospectus does not contain all the information set forth or
incorporated by reference in the Registration Statement and the exhibits and
schedules relating thereto, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the securities offered by this
Prospectus, reference is made to the Registration Statement and the exhibits and
schedules thereto which are on file at the offices of the Commission and may be
obtained upon payment of the fee prescribed by the Commission, or may be
examined without charge at the offices of the Commission. Statements contained
in this Prospectus as to the contents of any contract or other documents
referred to are not necessarily complete, and are qualified in all respects by
such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
Company's Annual Report on Form 10-K for its fiscal year ended June 30, 1995
(the "1995 Annual Report") filed with the Commission (File No.0-5888) pursuant
to the 1934 Act.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the offering of the
Securities shall be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain without
charge, upon request, a copy of any of the documents incorporated by reference
herein, except for the exhibits to such documents. Requests should be directed
to Waxman Industries, Inc. 24460 Aurora Road, Bedford Heights, Ohio 44146,
Telephone No: (216) 439-1830.
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PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to, and
should be read in conjunction with, the more detailed information and financial
statements appearing elsewhere in this Prospectus. References in this Prospectus
to a particular fiscal year refer to the 12-month period ended on June 30 in
that year. Unless the context otherwise indicates, all references to the
"Company" are to the continuing operations of Waxman Industries, Inc. and its
subsidiaries and divisions and to the business conducted through such
subsidiaries and divisions and exclude the operations of Waxman Consumer
Products Group Inc. ("Consumer Products"). As a result of the Company's recent
determination to sell its Consumer Products business, Consumer Products is
reported as a discontinued operation and the consolidated financial statements
and financial information incorporated by reference herein have been
reclassified to report separately Consumer Products' net assets and results of
operations. See "Recent Developments."
THE COMPANY
The Company believes it is one of the leading suppliers of plumbing
products to the repair and remodeling market in the United States. The Company
distributes plumbing, electrical and hardware products to over 49,000 customers
in the United States, including plumbing and electrical repair and remodeling
contractors and independent retailers. The Company's consolidated net sales were
$156.0 million in fiscal 1995.
The Company's business is conducted primarily through its wholly-owned
subsidiary, Barnett Inc. ("Barnett"). Barnett is a national mail order and
telemarketing business which markets an extensive line of over 9,200 plumbing,
electrical and hardware products to over 35,000 active customers. Through its
nationwide network of warehouses, Barnett provides its customers with a single
source for an extensive line of competitively priced quality products. The
Company's strategy of being a low-cost supplier is facilitated by its purchase
of a significant portion of its products from foreign sources. Based on
management's experience and knowledge of the industry, the Company believes that
Barnett is the only national competitor in this business. Due to its size,
purchasing power and foreign sourcing capabilities, Barnett has a number of
distinct competitive advantages including (i) the ability to offer prices
generally lower than those of its regional competition, (ii) the ability to
offer higher margin private label products which offer customers a low cost
alternative to name-brand products, and (iii), in virtually all cases, 24-hour
order turnaround. Barnett's marketing strategy is comprised of frequent catalog
and promotional mailings, supported by a 24-hour telemarketing operation.
Barnett has averaged 15% net sales growth per annum during the period from
fiscal 1991 to fiscal 1995 through (i) the enhancement and expansion of its
telemarketing operation, (ii) increased market penetration with the expansion of
its warehouse network, (iii) the introduction of new product offerings and (iv)
the introduction of two additional catalogs, each targeted at a distinct
customer base. Barnett's net sales for fiscal 1995 were $109.1 million.
The Company also has several other smaller operations which are
conducted through its other subsidiaries, WOC Inc. ("WOC") and TWI,
International, Inc. ("TWI"). WOC includes four operations, the largest of which
are U.S. Lock ("U.S. Lock") --a distributor of a full line of security hardware
products, and LeRan Copper & Brass ("LeRan") --a supplier of copper tubing,
brass fittings and other related products. TWI includes the foreign sourcing
operations which support Barnett, Consumer Products and WOC. Net sales from
these other operations were $46.9 million in fiscal 1995.
RECENT DEVELOPMENTS
In June 1995, William R. Pray was promoted to President and Chief
Operating Officer of the Company. In his new position, Mr. Pray assumed overall
responsibility for all of the Company's operations. In addition, Mr. Pray was
elected as a director of the Company, filling a newly created seat which
resulted from the expansion of Waxman Industries' Board of Directors from five
to six members. Mr. Pray has served as president of Barnett since 1987.
In August 1995, the Company announced that it has decided to sell its
Consumer Products business in order to enhance its capital structure and allow
the Company to focus on its fast growing Barnett mail order and telemarketing
business. Consumer Products markets, sells and distributes approximately 9,400
products to a wide variety of retailers, primarily Do-It-Yourself ("D-I-Y")
warehouse home centers, home improvement centers and mass merchandisers such as
Builders Square, Home Depot, Kmart, Sears and Wal-Mart. Consumer Products works
closely with its customers to develop innovative and comprehensive marketing and
merchandising programs designed to improve their profitability,
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efficiently manage shelf space, reduce inventory levels and maximize floor stock
turnover. Consumer Products' net sales were $72.0 million in fiscal 1995. The
Company anticipates that the proceeds from any such sale will be used, in part,
to retire the Notes thereby eliminating the mandatory sinking fund requirements
relating to the Notes which are scheduled to commence in September 1996. The
Company retained Merrill Lynch & Co. as its financial advisor in connection with
the sale.
In furtherance of its decision to sell the Consumer Products business,
the Company entered into a letter of intent which contemplates the sale of 75%
of Consumer Products, together with certain supporting operations, to a group
consisting of HIG Capital Management of Miami, Florida along with certain
members of Consumer Products' existing management team for an aggregate cash
purchase price of $50 million plus other consideration which will give the
Company a 25% economic interest in Consumer Products on a going forward basis.
The Company expects that it will account for any remaining interest
under the cost method as the interest it will retain will not allow it to
exercise significant influence over Consumer Products in the future. Such letter
of intent, however, contains certain contingencies including a financing
contingency. In connection with such sale, the Company intends to repay the
portion of its revolving credit facility and term loan which relates to Consumer
Products and refinance the remaining balances using proceeds from a new secured
credit facility. The Company expects that any such new secured credit facility
will improve liquidity through greater working capital availability.
Accordingly, Consumer Products is reported as a discontinued operation and the
consolidated financial statements and financial information incorporated by
reference herein have been reclassified to report separately Consumer Products'
net assets and results of operations. Prior period consolidated financial
statements and financial information have been reclassified to conform to the
current period presentation. During the fourth quarter of fiscal 1995, the
Company recorded a $11.0 million charge which represents the expected loss to be
incurred upon completion of the sale of the Consumer Products business. See
"Incorporation of Certain Information by Reference" and the 1995 Annual Report
for additional information regarding the business, financial condition and
results of operations of Consumer Products.
The Company also announced that it named Andrea Luiga to the position
of Vice President-Finance and Chief Financial Officer. Ms. Luiga replaced Neal
R. Restivo, formerly Senior Vice President and Chief Financial Officer of the
Company who submitted his resignation effective September 30, 1995 to pursue
another opportunity. Ms. Luiga was, and remains, Vice President, Controller of
Barnett and has been with Barnett since 1987.
As part of its efforts to decrease its leverage and increase its
financial flexibility, Waxman USA currently intends to offer to exchange for
$48.75 million principal amount of the Company's outstanding 13 3/4% Senior
Subordinated Notes due 1999 (the "Senior Subordinated Notes"), a like principal
amount of Waxman USA Senior Secured Notes due 2001 (the "Exchange Securities')
and in connection therewith to solicit consent to certain amendments to the
Indenture pursuant to which the Senior Subordinated Notes were issued. Although
the terms of the exchange offer have not been finalized, the Company expects
that the Exchange Offer, if consummated, will decrease the Company's cash
interest burden and will extend the maturity of the Senior Subordinated Note
issue by several years. A registration statement with respect to the Exchange
Securities has been filed with the Commission but has not yet become effective.
The Exchange Securities may not be sold nor may offers to buy be accepted prior
to the time the registration statement becomes effective. This Prospectus shall
not constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of the Exchange Securities from any state in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any state.
BACKGROUND OF EXCHANGE OFFER;
RECENT SECURITIES OFFERING AND RELATED MATTERS
On May 20, 1994, the Company issued Series A 12 3/4% Senior Secured
Deferred Coupon Notes Due 2004 having an initial accreted value of $50 million
(the "Deferred Coupon Notes") together with the Warrants to purchase 2.9 million
shares of Common Stock in exchange for $50 million aggregate principal amount of
the Company's outstanding 13 3/4% Senior Subordinated Notes due June 1, 1999
(the "Senior Subordinated Notes") pursuant to a private exchange offer (the
"Private Exchange Offer") which was a part of a series of interrelated
transactions (the "Reorganization"). In addition to the Private Exchange Offer,
the components of the Reorganization included (i) the solicitation of the
consents of the holders of the Company's Senior Subordinated Notes to certain
waivers of and the adoption of certain amendments to the indenture
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<PAGE> 8
governing the Senior Subordinated Notes (the "Senior Subordinated Consent
Solicitation"), (ii) the establishment of a $55 million revolving credit
facility (the "Domestic Credit Facility") and a $15 million term loan (the
"Domestic Term Loan"; and together with the Domestic Credit Facility, the "Debt
Financing"), (iii) the solicitation of the consents of the holders of the
Company's 12.25% Fixed Rate Senior Secured Notes due September 1, 1998 and
Floating Rate Senior Secured Notes due September 1, 1998 (together, the "Senior
Secured Notes") to certain waivers of and the adoption of certain amendments to
the indenture governing the Senior Secured Notes (the "12 1/4% Consent
Solicitation") and (iv) the repayment of the borrowings under the Company's then
existing domestic revolving credit facilities (including $27.6 under the
Company's then existing working capital credit facility and $1.2 million under
the $5.0 million revolving credit facility of Barnett (the "Barnett
Financing")).
During fiscal 1994, the Company restructured (the "Corporate
Restructuring") its domestic operations such that the Company is now a holding
company whose only material assets are the capital stock of its subsidiaries. As
part of the Corporate Restructuring, the Company formed (a) Waxman USA Inc.
("Waxman USA"), as a holding company for the subsidiaries that comprise and
support the Company's domestic operations, (b) Consumer Products, a wholly owned
subsidiary of Waxman USA, to own and operate Consumer Products Group Division,
and (c) WOC, a wholly owned subsidiary of Waxman USA, to own and operate Waxman
USA's domestic subsidiaries, other than Barnett and Consumer Products. On May
20, 1994, the Company completed the Corporate Restructuring by (i) contributing
the capital stock of Barnett to Waxman USA, (ii) contributing the assets and
liabilities of the Consumer Products Division to Consumer Products, (iii)
contributing the assets and liabilities of its Madison Equipment Division to
WOC, (iv) contributing the assets and liabilities of its Medal Distributing
Division to WOC, (v) merging U.S. Lock and LeRan, each a wholly owned subsidiary
of the Company, into WOC, (vi) contributing the capital stock of TWI to Waxman
USA and (vii) contributing the capital stock of Western American Manufacturing,
Inc. ("WAMI") to TWI.
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As a result of the Corporate Restructuring, the corporate structure of
the Company and its subsidiaries is as follows:
- --------------------------------------------------------------------------------
WAXMAN INDUSTRIES, INC.
- --------------------------------------------------------------------------------
|
---------------------------------------
WAXMAN USA INC.
---------------------------------------
|
|
|
------------------------------------------------------
| | | |
------------- ---------- -------- -----------------------
BARNETT INC. WAXMAN WOC INC. TWI, INTERNATIONAL INC.
CONSUMER
PRODUCTS
GROUP INC.
------------- ---------- -------- -----------------------
|
------------
| |
------------- ----------------
TWI, WESTERN AMERICAN
INTERNATIONAL MANUFACTURING,
TAIWAN, INC. INC.
------------- ----------------
| |
------------- ----------------
CWI COHART DE MEXICO
INTERNATIONAL SA DE CV
CHINA, LTD.
------------- ----------------
- ----------------------
Each subsidiary depicted above is a wholly owned subsidiary, except for TWI
International Taiwan, Inc. and Cohart de Mexico SA de CV, which are 99% owned.
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The Warrants were issued pursuant to exemptions from, or transactions
not subject to, the registration requirements of the Act and applicable state
securities laws. The Company structured the offering of the Warrants and Notes
as a private placement in order to consummate such offering on a more
expeditious basis than would have been possible had the offering and sale been
registered under the Act. The original purchasers of the Warrants, as a
condition to their purchase of the Warrants and Notes, required the Company to
enter into the Equity Registration Rights Agreement pursuant to which the
Company agreed, among other things, to file promptly a registration statement
under the Act to permit such original purchasers to offer and sell under the Act
the Warrants and shares of Common Stock issuable upon exercise of the Warrants.
The Company prepared and filed the Registration Statement of which this
Prospectus forms a part with the Commission pursuant to the Equity Registration
Rights Agreement. The original purchasers of the Notes, as a condition to their
purchase of the Notes and Warrants, also required the Company to enter into a
registration rights agreement pursuant to which the Company agreed, among other
things, to promptly commence the Exchange Offer (as defined herein) following
the offering of the Notes. The Company prepared and filed a Registration
Statement with the Commission pursuant to such registration rights agreement.
See "Plan of Distribution."
See "Selling Security Holders" and "Plan of Distribution" for a
discussion of the offering of the Warrants, the agreements referred to
above and additional related agreements. See "Description of the
Warrants" for a discussion of the terms of the Warrants.
THE OFFERING
Securities Offered .................... 2,950,000 Warrants to purchase shares
of Common Stock. In addition, this
Prospectus relates to the 2,950,000
shares of Common Stock issuable upon
exercise of the Warrants, subject to
adjustment in the event of any
recapitalization, reclassification,
stock dividend, stock split, reverse
stock split, stock issuance below fair
market value or other similar
transaction.
Warrants
Underlying Common Stock ...... Each Warrant is exercisable to
purchase one share of Common Stock
subject to adjustment under certain
circumstances. See "Description of
Warrants."
Exercise Price ............... $2.45 per share, subject to adjustment
in certain circumstances. See
"Description of Warrants."
Exercise Period .............. The Warrants are currently
exercisable. See "Description of
Warrants."
Expiration Date .............. The Warrants expire at 5:00 p.m. New
York City time on June 1, 2004.
Warrant Agent ................ The Huntington National Bank is
serving as Warrant Agent under the
Warrant Agreement.
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Common Stock
Number of Shares.............. 2,950,000 shares, subject to
adjustment in certain circumstances,
of Common Stock issuable upon the
exercise of the Warrants.
Common Stock Outstanding...... 11,712,162 shares as of September 22,
1995 (including 9,497,083 shares of
Common Stock and 2,215,079 shares of
Class B Common Stock).
NYSE symbol for
the Common Stock.............. WAX
Proceeds of the Offering............... All of the proceeds from the sale of
Securities offered hereby will be
received by the Selling Security
Holders. The Company will not receive
any of the proceeds from this
offering.
If all of the 2,950,000 Warrants
offered hereby are exercised at the
initial exercise price of $2.45 per
share, the Company would receive
$7,227,500, which would be added to
the Company's working capital and used
for general corporate purposes.
For more complete information regarding the Warrants, see "Description
of Warrants."
RISK FACTORS
Prospective purchasers of Securities offered hereby should carefully
consider the matters set forth under "Risk Factors," as well as the other
information and data included in this Prospectus.
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<PAGE> 12
RISK FACTORS
Prospective purchasers of Securities offered hereby should carefully
read the entire Prospectus and, in particular, should consider, among other
things, the following risks.
LEVERAGE
The Company has a high degree of leverage. At June 30, 1995, the
outstanding consolidated indebtedness (excluding trade payables and accrued
liabilities) of the Company's continuing operations was approximately $201
million. This high degree of leverage may have important consequences, including
the following: (i) the ability of the Company to obtain additional financing in
the future for working capital, capital expenditures, debt service requirements
or other purposes may be impaired; (ii) a substantial portion of the Company's
cash flow from operations will be required to satisfy debt service obligations;
(iii) the Company may be more highly leveraged than companies with which it
competes, which may place it at a competitive disadvantage; and (iv) the
Company's high degree of leverage may make it more vulnerable in the event of a
downturn in its business and may limit its ability to capitalize on business
opportunities. Although the Company believes that its operating cash flow as
well as amounts available under the Domestic Credit Facility will be sufficient
to fund working capital, capital expenditures and debt service requirements for
the next 12 months, the Company's ability to satisfy its obligations will be
dependent upon its future performance, which is subject to prevailing economic
conditions and financial, business and other factors, including factors beyond
the Company's control. Commencing March 1995, the Company has been required to
make quarterly principal payments of $1.0 million under its Domestic Term Loan.
In addition, the Company is required to make mandatory sinking fund payments of
$17.0 million on each of September 1, 1996 and September 1, 1997 with respect to
the Senior Secured Notes and a single payment of $8.8 million on June 1, 1998
with respect to the Senior Subordinated Notes. In addition, the Debt Financing
matures on May 20, 1997, subject to extension in certain circumstances. The
Company currently believes that it must obtain a significant infusion of funds,
either through additional debt refinancing transactions or the sale of equity
and/or assets before any significant deleveraging can occur. However, there can
be no assurances as to the timing or likelihood of such deleveraging. See
"Recent Developments" and the 1995 Annual Report for a discussion of the
Company's plan to sell Consumer Products and the Company's intention to use the
net proceeds therefrom to retire its $39.2 million of Senior Secured Notes,
thereby eliminating the mandatory sinking fund requirements relating to the
Senior Secured Notes which are scheduled to commence in September 1996, and to
repay a portion of its revolving credit facility and Domestic Term Loan.
To the Company's knowledge, its high degree of leverage has not
resulted in the refusal by any of its customers, suppliers or manufacturers to
do business with the Company or in the alteration of material terms which have
had a material impact on the Company's business.
RESTRICTIONS IMPOSED BY TERMS OF INDEBTEDNESS
The terms and conditions of the instruments evidencing the Debt
Financing, as well as other indebtedness of the Company, impose restrictions
that affect, among other things, the ability of the Company and/or its
subsidiaries to incur debt, pay dividends, make acquisitions, create liens, sell
assets and make certain investments. The breach of any of the foregoing
covenants would result in a default under the applicable debt instrument
permitting the holders of indebtedness outstanding thereunder, subject to
applicable grace periods, to accelerate such indebtedness. There can be no
assurance that the Company would have sufficient funds to repay or assets to
satisfy such obligations.
10
<PAGE> 13
CONTROL BY PRINCIPAL STOCKHOLDERS; CERTAIN ANTI-TAKEOVER EFFECTS
Approximately 16.3% (and 12.4%, assuming the exercise of all of the
Warrants offered hereby) of the outstanding shares of the Company's common
stock, par value $.01 per share, and 80.3% of the outstanding shares of the
Company's Class B common stock are held by Melvin and Armond Waxman, brothers
and respectively, the Co-Chairmen of the Board and Co-Chief Executive Officers
(the "Principal Stockholders"). These holdings represent 61.1% (and 55.9%,
assuming the exercise of all of the Warrants offered hereby) of the outstanding
voting power of the Company. Consequently, the Principal Stockholders have
sufficient voting power to elect the entire Board of Directors of the Company
and, in general, to determine the outcome of any corporate transaction or other
matter submitted to the stockholders for approval, including any merger,
consolidation, sale of all or substantially all of the Company's assets or
"going private" transactions, and to prevent or cause a change in control of the
Company. In addition, certain provisions in the Company's Certificate of
Incorporation, By-laws and debt instruments, including the Change of Control
provisions in the Indenture governing the Notes, may be deemed to have the
effect of discouraging a third party from pursuing a non-negotiated takeover of
the Company and preventing certain changes in control.
DEFICIENCY OF EARNINGS TO FIXED CHARGES
In fiscal 1995, 1994 and 1993, the Company's earnings were insufficient
to cover its fixed charges by $8.5 million, $4.0 million and $14.5 million,
respectively. The Company's business strategy, described herein and in the 1995
Annual Report, is designed to capitalize on the growth prospects for Barnett
and thereby increase earnings. The Company believes that the successful
implementation of its business strategy will enable it to reduce or eliminate
the deficiency of earnings to fixed charges. However, there can be no
assurances regarding when such deficiencies will be reduced or eliminated or
that the deficiencies experienced in the past will not reoccur.
FOREIGN SOURCING
In fiscal 1995, products manufactured outside of the United States
accounted for approximately 19.8% of the total product purchases made by the
Company's continuing operations. Foreign sourcing involves a number of risks,
including the availability of letters of credit, maintenance of quality
standards, work stoppages, transportation delays and interruptions, political
and economic disruptions, foreign currency fluctuations, expropriation,
nationalization, the imposition of tariffs and import and export controls and
changes in governmental policies (including United States' policy toward the
foreign country where the products are produced), which could have an adverse
effect on the Company's business. The occurrence of certain of these factors
would delay or prevent the delivery of goods ordered by the Company's customers,
and such delay or inability to meet delivery requirements would have an adverse
effect on the Company's results of operations and could have an adverse effect
on the Company's relationships with its customers. In addition, the loss of a
foreign manufacturer could have a short-term adverse effect on the Company's
business until alternative supply arrangements were secured.
RELIANCE ON KEY CUSTOMERS
During fiscal 1995, Kmart and its subsidiaries, Consumer Products'
largest customer, accounted for approximately 13.5% of the Company's continuing
and discontinued operations' net sales. During the same period, Consumer
Products' ten largest customers accounted for approximately 23.5% of the
Company's continuing and discontinued operations' net sales. The loss of or a
substantial decrease in the business of Consumer Products' largest customers
could have a material adverse effect on the Company's continuing and
discontinued operations.
See "Recent Developments" and the 1995 Annual Report for information
regarding the Company's decision to sell Consumer Products.
11
<PAGE> 14
PROCEEDS OF THE OFFERING
The Company will not receive any of the proceeds of this offering. All
of the proceeds of this offering will be received by the Selling Security
Holders.
ABSENCE OF PUBLIC MARKET
At present, the Warrants are owned by a small number of investors and
there is no active trading market for the Warrants. If an active trading market
does not develop, purchasers of the Warrants may have difficulty liquidating
their investment and the Warrants may not be readily accepted as collateral for
loans. Accordingly, no assurances can be given as to the price at which holders
of the Warrants will be able to sell the Warrants, if at all.
The liquidity of and the market prices for the Warrants and Common
Stock can be expected to vary with changes in market and economic conditions,
the financial condition and prospects of the Company and other factors that
generally influence the market prices of securities, including fluctuations in
the market for warrants and common stock generally.
POSSIBLE FUTURE SALES OF SHARES BY THE SELLING SECURITY HOLDERS
Subject to the restrictions described under "Risk Factors -- Shares
Eligible for Future Sale" and applicable law, upon the effectiveness of the
Registration Statement of which this Prospectus forms a part, the Selling
Security Holders could cause the sale of any or all of the Warrants or
underlying shares of Common Stock they own. The Selling Security Holders may
determine to sell Warrants or the underlying shares of Common Stock from time to
time for any reason. Although the Company can make no prediction as to the
effect, if any, that sales of Warrants or shares of Common Stock owned by the
Selling Security Holders would have on the market price of Common Stock
prevailing from time to time, sales of substantial amounts of Warrants or Common
Stock, or the availability of such Warrants or shares of Common Stock for sale
in the public market, could adversely affect prevailing market prices of the
Common Stock.
SHARES ELIGIBLE FOR FUTURE SALE
As of September 30, 1995, there were 9,497,083 shares of Common Stock
outstanding and 2,215,079 shares of Class B Common Stock outstanding
(convertible into 2,220,705 shares of Common Stock). To the extent such shares
are not held by "affiliates" or otherwise subject to restrictions on resale,
including those imposed by Section 16(b) of the Exchange Act, the Warrants, and
upon exercise of the Warrants, the shares of Common Stock which are issuable
upon exercise of the Warrants and offered hereby are eligible for sale in the
public market. Although the Company can make no prediction as to the effect, if
any, that sales of the Warrants and shares of Common Stock referred to above
would have on the market price of the Common Stock prevailing from time to time,
sales of a substantial amount of Warrants or Common Stock, or the availability
of such Warrants or shares of Common Stock for sale in the public market could
adversely affect prevailing market prices of the Common Stock.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Securities offered hereby, all of which will be received by the Selling Security
Holders.
If all of the 2,950,000 Warrants offered hereby are exercised at the
initial exercise price of $2.45 per share, the Company would receive $7,227,500,
which would be added to the Company's working capital and used for general
corporate purposes.
12
<PAGE> 15
FIXED CHARGE COVERAGE RATIO
Fiscal 1993, 1994 and 1995 earnings were insufficient to cover fixed
charges by $14.5 million, $4.0 million and $8.5 million, respectively. The
Company's business strategy, described herein and in the 1995 Annual Report, is
designed to capitalize on the growth prospects for Barnett and thereby increase
earnings. The Company believes that the successful implementation of its
business strategy will enable it to reduce or eliminate the deficiency of
earnings to fixed charges. However, there can be no assurances regarding when
such deficiencies will be reduced or eliminated or that the deficiencies
experienced in the past will not reoccur.
13
<PAGE> 16
SELLING SECURITY HOLDERS
The following table sets forth certain information with respect to the
Securities beneficially owned and offered hereby by each Selling Security
Holder.
<TABLE>
<CAPTION>
Name Warrants Owned Warrants Offered
---- -------------- ----------------
<S> <C> <C>
American Enterprise Life Insurance Company 2,950 2,950
Citicorp Securities, Inc. 147,500 147,500
Colonial High Yield Securities Fund 59,000 59,000
Executive Investors High Yield Fund 5,900 5,900
First Investors Fund for Income 103,250 103,250
First Investors High Yield Fund 100,300 100,300
IDS Life Insurance Company 143,075 143,075
IDS Life Insurance Company of New York 10,325 10,325
Internationale Nederlanden (U.S.) Finance
Corporation 354,000 354,000
Kemper Diversified Income Fund 222,607 222,607
Kemper High Income Trust 55,106 55,106
Kemper High Yield Fund 800,453 800,453
Kemper Investors Fund-High Yield Portfolio 52,274 52,274
Kemper Multi-Market Income Trust 12,154 12,154
KML High Yield Investments N.V. 9,853 9,853
KML II High Yield Investments N.V. 9,853 9,853
MetLife-State Street High Income Fund 236,000 236,000
MetLife-State Street Managed Assets 29,500 29,500
Metropolitan Life Insurance Co. 59,000 59,000
Merrill Lynch Pierce Fenner & Smith Inc. 359,900 359,900
Northstar High Yield Fund 118,000 118,000
T.D. Partners 59,000 59,000
--------- ---------
Total 2,950,000 2,950,000
</TABLE>
- ---------------
The Company is registering, on behalf of each Selling Security Holder,
the offer and sale of the number of Warrants set forth opposite such Selling
Security Holder's name under the column captioned "Warrants Offered" and the
same number of shares of Common Stock, subject to adjustment in certain
circumstances, issuable upon
14
<PAGE> 17
exercise of the Warrants. As of the date hereof, no Warrants have been
exercised to purchase shares of Common Stock.
Because the Selling Security Holders may offer all or some part of the
Securities pursuant to this Prospectus and because this offering is not being
underwritten on a firm commitment basis, no estimate can be given as to the
amount of Securities to be offered for sale by the Selling Security Holders nor
the amount of Securities that will be held by the Selling Security Holders upon
termination of this offering. See "Plan of Distribution." To the extent
required, the specific amount of Securities to be sold by the Selling Security
Holders in connection with a particular offer will be set forth in an
accompanying Prospectus Supplement.
DESCRIPTION OF THE WARRANTS
The Warrants were issued pursuant to the terms of a Warrant Agreement,
dated as of May 20, 1994 (the "Warrant Agreement"), by and between the Company
and The Huntington National Bank, as warrant agent (the "Warrant Agent"), on
behalf of the original purchasers of the Warrants. The following summary of the
material provisions of the Warrant Agreement and the Warrant Certificate
attached thereto (the "Warrant Certificate") does not purport to be complete,
and where reference is made to particular provisions of the Warrant Agreement or
the Warrant Certificate, such provisions, including the definitions of certain
terms, are qualified in their entirety by reference to all of the provisions of
the Warrant Agreement and Warrant Certificate, which have been filed or
incorporated by reference as exhibits to the Registration Statement of which
this Prospectus forms a part.
The Warrants are currently exercisable. The Warrants will expire June
1, 2004. Upon exercise, each Warrant entitles the holder to receive one Warrant
Share at a cash exercise price of $2.45, subject to adjustment in certain
circumstances.
Holders of the Warrants do not have any of the rights or privileges of
the stockholders of the Company, including voting rights to receive dividends,
prior to exercise of the Warrants. The Company has reserved out of its
authorized but unissued shares a sufficient number of shares of Common Stock for
issuance upon exercise of the Warrants. The Common Stock issuable on exercise of
the Warrants will be, when issued, fully paid and nonassessable.
ANTI-DILUTION
The Warrants contain customary anti-dilution provisions, including
adjustments in the event of a reclassification, recapitalization, stock
dividend, stock split, reverse stock split, stock issuance below fair market
value or other similar transaction, and including protections in the event of a
transaction in which the Company is not the surviving entity.
METHOD OF EXERCISE
The Warrants may be exercised by surrendering to the Warrant Agent the
Warrant Certificates evidencing such Warrants, with the accompanying form of
election to purchase properly completed and executed. Upon surrender of the
Warrant Certificates and payment in cash of the exercise price, the Warrant
Agent will deliver, or cause to be delivered, to or upon the written order of
such holder, certificates representing the Warrant Shares to which such holder
is entitled.
Warrant Certificates will be issued in registered form only and no
service charge shall be made for registration of transfer or exchange upon
surrender of any Warrant Certificate at the office of the Warrant Agent
maintained for that purpose. The Company may require payment of a sum sufficient
to cover any tax or other
15
<PAGE> 18
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Warrant Certificates.
AMENDMENT
From time to time, the Company and the Warrant Agent, without the
consent of the holders of the Warrants, may amend or supplement the Warrant
Agreement for certain purposes, including curing defects or inconsistencies or
making any change that does not adversely affect the rights of any holder. Any
amendment or supplement to the Warrant Agreement that has an adverse effect on
the interests of holders or that affects the anti-dilution provisions contained
therein shall require the written consent of registered holders of a majority of
the then outstanding Warrants. The consent of each holder of an Warrant affected
shall be required for any amendment pursuant to which the number of Warrant
Shares which could be acquired upon exercise of Warrants would be decreased or
the exercise period for the Warrants would be modified in any manner.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 2,000,000
shares of Preferred Stock, $.01 par value, 22,000,000 shares of Common Stock,
$.01 par value, and 6,000,000 shares of Class B Common Stock, $.01 par value. As
of September 30, 1995, no shares of Preferred Stock, 9,497,083 shares of Common
Stock and 2,215,079 shares of Class B Common Stock were issued and outstanding.
COMMON STOCK AND CLASS B COMMON STOCK
Each share of Common Stock entitles the holder to one vote on all
matters submitted to the stockholders, including the election of directors, and
each share of Class B Common Stock entitles the holder to ten votes on all such
matters. Except as set forth below, all actions submitted to a vote of
stockholders are voted on by holders of Common Stock and Class B Common Stock
voting together as a single class. The holders of Common Stock and Class B
Common Stock vote separately as classes with respect to any amendments to the
Company's Certificate of Incorporation that alter or change the powers,
preferences or special rights of their respective classes of stock so as to
affect them adversely, and with respect to such other matters as may require
class votes under the Delaware General Corporation Law.
Dividends on the Class B Common Stock may not exceed those on the
Common Stock. Each share of Common Stock and Class B Common Stock is equal in
respect of rights to dividends and other distributions in stock or property of
the Company (including distributions upon liquidation of the Company), except
that in the case of dividends or other distributions payable on the Common Stock
and the Class B Common Stock in shares of such stock, including distributions
pursuant to split-ups or divisions of the Common Stock or the Class B Common
Stock, only Common Stock will be distributed with respect to Common Stock and
only Class B Common Stock will be distributed with respect to Class B Common
Stock. In no event will either the Common Stock or the Class B Common Stock be
split, divided or combined unless the other is split, divided or combined
equally.
The Class B Common Stock is not transferable by a holder except to or
among such holder's spouse, certain of such holder's relatives and certain
trusts established for their benefit. The Class B Common Stock is convertible
into Common Stock on a share-for-share basis at any time.
If the number of outstanding shares of Class B Common Stock at any time
falls below 250,000 (as adjusted for any stock splits, combinations, stock
dividends or further issuances of Class B Common Stock), the outstanding shares
of Class B Common Stock will automatically be converted into shares of Common
Stock.
16
<PAGE> 19
The Class B Common Stock may tend to have an anti-takeover effect.
Since voting control of the Company is vested primarily in the holders of the
Class B Common Stock, the issuance of the Class B Common Stock could render more
difficult, or discourage, a hostile merger proposal, a tender offer or a proxy
contest, even if such actions were favored by a majority of the holders of
Common Stock. As of June 30, 1995, Melvin Waxman and Armond Waxman
beneficially owned an aggregate of approximately 80.3% of the outstanding
Class B Common Stock and 61.1% of the aggregate outstanding voting power of
the Company.
The transfer agent and registrar for the Common Stock and Class B
Common Stock is National City Bank, Cleveland, Ohio.
PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more
series, and the Board of Directors is authorized to fix the dividend rights and
terms, any conversion rights, any voting rights, any redemption rights and terms
(including sinking fund provisions), the rights in the event of liquidation and
any other rights, preferences, privileges and restrictions of any series of
Preferred Stock, as well as the number of shares constituting such series and
the designation thereof. The Preferred Stock, if issued, will rank senior to the
Company Common Stock as to dividends and as to liquidation preference. Holders
of Preferred Stock will have no preemptive rights. The issuance of shares of
Preferred Stock could have an anti-takeover effect under certain circumstances.
The issuance of shares of Preferred Stock could enable the Board of Directors to
render more difficult or discourage an attempt to obtain control of the Company
by means of a merger, tender offer or other business combination transaction
directed at the Company by, among other things, placing shares of Preferred
Stock with investors who might align themselves with the Board of Directors,
issuing new shares to dilute stock ownership of a person or entity seeking
control of the Company or creating a class or series of Preferred Stock with
voting rights. The issuance of shares of the Preferred Stock as an anti-takeover
device might preclude stockholders from taking advantage of a situation which
they believed could be favorable to their interests. No shares of Preferred
Stock are outstanding, and the Company has no present plans to issue any shares
of Preferred Stock.
PLAN OF DISTRIBUTION
Any or all of the Securities may be sold from time to time to
purchasers directly by the Selling Security Holders. Alternatively, the Selling
Security Holders may from time to time offer the Securities through
underwriters, dealers or agents who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Security
Holders and/or the purchasers of Securities for whom they may act as agents. The
Selling Security Holders and any such underwriters, dealers or agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Act, and any profit on the sale of the Securities by them and any
discounts, commissions or concessions received by them may be deemed to be
underwriting discounts and commissions under the Act. The Securities may be sold
from time to time in one or more transactions at a fixed offering price, which
may be changed, or at varying prices determined at the time of sale or at
negotiated prices. The distribution of Securities by the Selling Security
Holders may be effected in one or more transactions that may take place on the
NYSE or the over-the-counter market, including ordinary broker's transactions,
privately-negotiated transactions or through sales to one or more broker-dealers
for resale of such shares as principals, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices. Usual and customary or specifically negotiated brokerage fees, discounts
and commissions may be paid by the Selling Security Holders in connection with
such sales of securities.
At the time a particular offer of Securities is made, to the extent
required, a supplement to this Prospectus will be distributed (or, if required,
a post-effective amendment to the Registration Statement of which this
Prospectus is a part will be filed) which will identify the specific Securities
being offered and set forth the aggregate amount of Securities being offered,
the purchase price and the terms of the offering, including the name or names
17
<PAGE> 20
of the Selling Security Holders and of any underwriters, dealers or agents, the
purchase price paid by any underwriter for Securities purchased from the Selling
Security Holders, any discounts, commissions and other items constituting
compensation from the Selling Security Holders and/or the Company and any
discounts, commissions or concessions allowed or reallowed or paid to dealers,
including the proposed selling price to the public. In addition, an underwritten
offering will require clearance by the National Association of Securities
Dealers, Inc. of the underwriter's compensation arrangements. The Company will
not receive any of the proceeds from the sale by the Selling Security Holders of
the Securities offered hereby. All of the filing fees and other expenses of this
Registration Statement will be borne in full by the Company, other than any
underwriting fees, discounts and commissions relating to this offering.
Pursuant to the Equity Registration Rights Agreement, the Company will
use its best efforts to keep the Registration Statement of which this Prospectus
forms a part effective under the Act for a period of three years following the
initial effective date of such Registration Statement (or such shorter period as
permitted under the Equity Registration Rights Agreement) and the Company will
pay substantially all of the expenses incident to the offering and sale of the
Securities to the public, other than underwriting fees, discounts and
commissions. The Equity Registration Rights Agreement provides for
cross-indemnification of the Selling Security Holders and the Company, to the
extent permitted by law, for losses, claims, damages, liabilities and expenses
arising, under certain circumstances, out of any registration of the Securities.
The Equity Registration Rights Agreement also provides that in connection with
an underwriting offering, the Company will indemnify the underwriters thereof,
their officers and directors and each person who controls such underwriters
(within the meaning of the Act) to the same extent as provided with respect to
the indemnification of the Selling Security Holders signatory to such agreement,
except with respect to information provided by such underwriters specifically
for inclusion within the appropriate registration statement. The period
beginning on the date the Equity Registration Statement is first declared
effective by the Commission and ending on the date which is three years after
the expiration of the Warrants or, if earlier, the date on which all Warrants
and Warrant Shares have been sold pursuant to the Equity Registration Statement
or the date three years after all Warrants have been exercised, is referred to
as the "Effectiveness Period." In the event that the Equity Registration
Statement is not filed or effective by, or continuously effective through, the
dates referred to above or prior to the end of the Effectiveness Period, the
Commission shall have issued a stop order suspending the effectiveness of the
Equity Registration Statement or the prospectus contained in the Equity
Registration Statement, as amended or supplemented, shall (x) not contain
current information required by the Securities Act and the rules and regulations
promulgated thereunder or (y) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they are
made, not misleading, the Company agreed to pay, or cause to be paid, as
liquidated damages and not as a penalty, to each holder of a Warrant or Warrant
Share, an amount equal to $0.0025 per week per Warrant or Warrant Share, as the
case may be, for each week beginning on such date and ending 90 days thereafter.
Such liquidated damages shall be increased by $0.0025 per week per Warrant or
Warrant Share, as the case may be, at the beginning of each subsequent 90-day
period up to a maximum aggregate amount of $0.01 per week per Warrant or Warrant
Share, as the case may be. The Company agreed to pay all expenses incident to
the Company's performance of or compliance with the Equity Registration Rights
Agreement, including the reasonable fees and expenses of counsel to the original
purchasers of the Warrants but excluding any underwriting fees, discounts or
commissions attributable to the sale of the Warrants or Warrant Shares. Each of
the Company and the Warrant Agent, on behalf of the original purchasers of the
Warrants, pursuant to the Equity Registration Rights Agreement, agreed to
indemnify the other party, its officers, directors and controlling persons in
respect of certain liabilities and expenses arising, under certain
circumstances, out of any registration of the Securities pursuant to the Equity
Registration Rights Agreement.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the Securities may not simultaneously engage
in market making activities with respect to the Securities for a period of two
business days prior to the commencement of such distribution. In addition and
without limiting the foregoing, the Selling Security Holders will be subject to
applicable provisions of the Exchange Act and the rules and
18
<PAGE> 21
regulations thereunder, including without limitation Rules 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sales of the Securities
by the Selling Security Holders.
In order to comply with certain states' securities laws, if applicable,
the Securities will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the Securities may not be sold
unless the Securities have been registered or qualified for sale in such state,
or unless an exemption from registration or qualification is available and is
obtained.
The Warrants originally issued by the Company in the Private Exchange
Offer contained legends as to their restricted transferability. In addition, the
certificates for Common Stock issuable upon exercise of the Warrants would
contain, legends as to their restricted transferability. Upon the effectiveness
of the Registration Statement of which this Prospectus forms a part and the
transfer of the Securities pursuant thereto, these legends will no longer be
necessary, and accordingly, new certificates representing such Securities will
be issued to the transferee without any such legends unless otherwise required
by law.
In addition to sales pursuant to the Registration Statement of which
this Prospectus forms a part, the Warrants and the shares of Common Stock
issuable upon exercise of the Warrants may be sold in accordance with Rule 144
under the Act.
LEGAL MATTERS
The legality of the securities covered by this Prospectus has been
passed upon by Shereff, Friedman, Hoffman & Goodman, LLP, New York, New York,
counsel to the Company.
EXPERTS
The consolidated financial statements of the Company as of June 30,
1994 and June 30, 1995 and for each of the three years in the period ended June
30, 1995 appearing in the Company's Annual Report and incorporated by reference
in this Prospectus and elsewhere in this Registration Statement have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports. Reference is made to
said report, which includes an explanatory paragraph with respect to the change
in the method of accounting for certain warehousing and catalog costs as
discussed in Note 4 to the consolidated financial statements.
19
<PAGE> 22
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE HEREIN, IN CONNECTION WITH THIS OFFER AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER
TO BUY, ANY OF THESE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. THE DELIVERY
OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
<TABLE>
<CAPTION>
TABLE OF CONTENTS PAGE
<S> <C>
Available Information .................................................. 3
Incorporation of Certain Documents by Reference ........................ 3
Prospectus Summary ..................................................... 4
Risk Factors ........................................................... 10
Use of Proceeds ........................................................ 12
Selling Security Holders ............................................... 14
Description of Warrants ................................................ 15
Description of Capital Stock ........................................... 16
Plan of Distribution ................................................... 17
Legal Matters .......................................................... 19
Experts ................................................................ 19
</TABLE>
WAXMAN INDUSTRIES, INC.
2,950,000
WARRANTS TO
PURCHASE COMMON STOCK
_________
2,950,000
SHARES OF
COMMON STOCK
PAR VALUE $.01 PER SHARE
______________
PROSPECTUS
______________
__________, 1995
______________
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following expenses incurred in connection with this Registration
Statement will be paid by the Company. The Selling Security Holders will not
bear any of such expenses.
<TABLE>
<CAPTION>
<S> <C>
Filing Fees - Securities and Exchange Commission $ --
Accounting Fees and Expenses 5,000*
Legal Fees and Expenses 15,000*
Printing Fees and Expenses 2,500*
Miscellaneous Expenses 2,500*
-------
Total $25,000*
</TABLE>
* Estimated
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of Waxman Industries, Inc. provides
that each person who is a party to or involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she was a director or officer of Waxman Industries, shall
be indemnified and held harmless by Waxman Industries to the fullest extent
authorized by the Delaware General Corporation Law against all expense,
liability and loss reasonably incurred by such person in connection therewith.
The Certificate of Incorporation provides that the right to indemnification
contained therein is a contract right and includes the right to be paid by
Waxman Industries the expenses incurred in defending any such proceeding in
advance of its final disposition; provided, however, that if the Delaware
General Corporation Law requires, the payment of such expenses incurred in
advance of the final disposition of a proceeding shall be made only upon
delivery to Waxman Industries of an undertaking to repay all amounts so advanced
if it shall ultimately be determined that such director or officer is not
entitled to be indemnified. Waxman Industries maintains directors' and officers'
liability insurance covering certain liabilities incurred by the directors and
officers of Waxman Industries in connection with the performance of their
duties.
ITEM 16. EXHIBITS
4.1(1) Indenture, dated as of May 20, 1994, by and between Waxman
Industries, Inc. and The Huntington National Bank, as Trustee, with
respect to the Senior Secured Deferred Coupon Notes, including the
form of Senior Secured Deferred Coupon Notes (Exhibit 4.1 to Waxman
Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein
by reference).
4.2(1) Warrant Agreement, dated as of May 20, 1994, by and between Waxman
Industries, Inc. and The Huntington National Bank, as Warrant Agent
(Exhibit 4.2 to Waxman Industries, Inc.'s Form S-4 filed June 20,
1994, incorporated herein by reference).
4.3(1) Warrant Certificate (Exhibit 4.3 to Waxman Industries, Inc.'s Form
S-4 filed June 20, 1994, incorporated herein by reference).
5.1(1) Opinion of Shereff, Friedman, Hoffman & Goodman, LLP regarding
legality (filed as Exhibit 5.1 to this Registration Statement).
II-1
<PAGE> 24
10.1(1) Lease between Waxman Industries, Inc. as Lessee and Aurora
Investment Co. as Lessor dated June 30, 1992 (Exhibit 10.1 to Waxman
Industries, Inc.'s Annual Report on Form 10-K for the year ended
June 30, 1992, File No. 0-5888, incorporated herein by reference).
10.2(1) Policy Statement (revised as of June 1, 1980) regarding Waxman
Industries, Inc.'s Profit Incentive Plan (Exhibit 10(c)-1 to Waxman
Industries, Inc.'s Annual Report on Form 10-K for the year ended
June 30, 1984, File No. 0-5888, incorporated herein by reference).
10.3(1) Employment Contract dated June 18, 1990 between Barnett Inc. and
William R. Pray (Exhibit 10.4 to Waxman Industries, Inc.'s Annual
Report on Form 10-K for the year ended June 30, 1991, File No.
0-5888, incorporated herein by reference).
10.4(1) Form of Stock Option Agreement between Waxman Industries, Inc. and
its Directors (Exhibit 10.5 to Waxman Industries, Inc.'s Annual
Report on Form 10-K for the year ended June 30, 1991, File No.
0-5888, incorporated herein by reference).
10.5(1) Employment Contract dated January 1, 1992 between Waxman Industries,
Inc. and John S. Peters (Exhibit 10.6 to Waxman Industries, Inc.'s
Annual Report on Form 10-K for the year ended June 30, 1992, File
No. 0-5888, incorporated herein by reference).
10.6 Employment Agreement dated November 1, 1994 between Waxman Consumer
Products Group Inc. and Laurence Waxman.
10.7(1) Tax Sharing Agreement dated May 20, 1994 among Waxman Industries,
Inc., Waxman USA, Barnett Inc., Waxman Consumer Products Group Inc.,
WOC Inc. and Western American Manufacturing, Inc. (Exhibit 10.6 to
Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated
herein by reference).
10.8(1) Intercorporate Agreement dated May 20, 1994 among Waxman Industries,
Inc., Waxman USA, Barnett Inc., Waxman Consumer Products Group Inc.,
WOC Inc. and Western American Manufacturing, Inc. (Exhibit 10.7 to
Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated
herein by reference).
10.9(1) Credit Agreement dated as of May 20, 1994 among Waxman USA, Inc.,
Barnett Inc., Waxman Consumer Products Group Inc. and WOC Inc., the
Lenders and Issuers party thereto and Citicorp USA, Inc. as Agent,
and certain exhibits thereto (Exhibit 10.8 to Waxman Industries,
Inc.'s Form S-4 filed June 20, 1994, incorporated herein by
reference).
10.10(1) Term Loan Credit Agreement dated as of May 20, 1994 among Waxman
USA, Inc., Barnett Inc., Waxman Consumer Products Group Inc. and WOC
Inc., the Lenders and Issuers party thereto and Citibank, N.A., as
Agent (Exhibit 10.9 to Waxman Industries, Inc.'s Form S-4 filed June
20, 1994, incorporated herein by reference).
10.11 Amendment No. 2 to the Term Loan Agreement and Amendment No. 1 to
the Revolving Credit Agreement among Waxman USA, Inc., Barnett
Inc., Waxman Consumer Products Group Inc. and WOC Inc., the
Lenders and Issuers party thereto and Citibank, N.A., as Agent.
12.1(1) Statement re: computation of ratio (Exhibit 12.1 to Waxman
Industries Inc.'s Form S-1 filed July 18, 1995, incorporated herein
by reference).
II-2
<PAGE> 25
13.1(1) Waxman Industries, Inc.'s Annual Report on Form 10-K for its fiscal
year ended June 30, 1995 (File No. 33-5888, incorporated herein by
reference).
23.1 Consent of Arthur Andersen LLP.
23.2(1) Consent of Shereff, Friedman, Hoffman & Goodman, LLP (contained in
its opinion filed as Exhibit 5.1 to this Registration Statement).
24.1 Power of Attorney (included in Part II of this Registration
Statement).
- ------------------
(1) Incorporated herein by reference as indicated.
(b) FINANCIAL STATEMENT SCHEDULES
All schedules have been omitted because the required
information is not present or not present in amounts sufficient to require
submission of the schedule, or because the information required is included in
the consolidated financial statements including notes thereto.
ITEM 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the securities
Exchange Act of 1934 (and, where applicable,
II-3
<PAGE> 26
each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
C. The undersigned registrant hereby undertakes to
deliver or cause to be delivered with the prospectus, to each
person whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
D. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Waxman
Industries, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-2 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland, State of Ohio on the 10th day of
October, 1995.
WAXMAN INDUSTRIES, INC.
By:/s/ Armond Waxman
--------------------------------
Armond Waxman,
Co-Chairman of the Board and
Co-Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/s/ * Co-Chairman of the Board, October 10, 1995
- ------------------------------- Co-Chief Executive Officer
Melvin Waxman and Director
/s/ * Co-Chairman, Co-Chief Executive October 10, 1995
- ------------------------------- Officer and Director
Armond Waxman
/s/ William R. Pray President, Chief Operating October 10, 1995
- ------------------------------- Officer and Director
William R. Pray
/s/ Andrea Luiga Chief Financial Officer October 10, 1995
- -------------------------------
Andrea Luiga
/s/ * Director October 10, 1995
- -------------------------------
Samuel J. Krasney
/s/ * Director October 10, 1995
- -------------------------------
Irving Z. Friedman
/s/ * Director October 10, 1995
- -------------------------------
Judy Robins
* By /s/ Armond Waxman
----------------------
Armond Waxman
As Attorney-in-Fact
</TABLE>
II-5
<PAGE> 28
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Armond Waxman, his or her
attorney-in-fact and agent, with the power of substitution for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments), to this Registration
Statement, and to file the same, with all exhibits thereto, and all documents in
connection therewith with the Securities and Exchange Commission, and hereby
ratifying and confirming all that said attorney-in-fact, or their or his or her
substitute or substitutes, may do or cause to be done by virtue thereof.
<TABLE>
<S> <C> <C>
/s/ William R. Pray President, Chief Operating October 10, 1995
- ------------------------------------- Officer and Director
William Pray
/s/ Andrea Luiga Chief Financial Officer October 10, 1995
- -------------------------------
Andrea Luiga
</TABLE>
II-6
<PAGE> 29
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER EXHIBIT DESCRIPTION SEQUENTIAL PAGE NUMBER
- -------------- ------------------- ----------------------
<S> <C> <C>
4.1(1) Indenture, dated as of May 20, 1994, by and
between Waxman Industries, Inc. and The Huntington
National Bank, as Trustee, with respect to the
Deferred Coupon Notes, including the form of
Deferred Coupon Notes (Exhibit 4.1 to Waxman
Industries, Inc.'s Form S-4 filed June 20, 1994,
incorporated herein by reference).
4.2(1) Warrant Agreement, dated as of May 20, 1994, by
and between Waxman Industries, Inc. and The
Huntington National Bank, as Warrant Agent
(Exhibit 4.2 to Waxman Industries, Inc.'s Form S-4
filed June 20, 1994, incorporated herein by
reference).
4.3(1) Warrant Certificate (Exhibit 4.3 to Waxman
Industries, Inc.'s Form S-4 filed June 20, 1994,
incorporated herein by reference).
5.1(1) Opinion of Shereff, Friedman, Hoffman & Goodman,
LLP regarding legality (filed as exhibit 5.1 to this
Registration Statement).
10.1(1) Lease between Waxman Industries, Inc. as Lessee
and Aurora Investment Co. as Lessor dated June
30, 1992 (Exhibit 10.1 to Waxman Industries,
Inc.'s Annual Report on Form 10-K for the year
ended June 30, 1992, File No. 0-5888,
incorporated herein by reference).
10.2(1) Policy Statement (revised as of June 1, 1980)
regarding Waxman Industries, Inc.'s Profit
Incentive Plan (Exhibit 10(c)-1 to Waxman
Industries, Inc.'s Annual Report on Form 10-K for
the year ended June 30, 1984, File No. 0-5888,
incorporated herein by reference).
10.3(1) Employment Contract dated June 18, 1990 between Barnett Inc.
and William
</TABLE>
II-7
<PAGE> 30
<TABLE>
<CAPTION>
Exhibit Number Exhibit Index Sequential Page Number
- -------------- ------------- ----------------------
<S> <C> <C>
R. Pray (Exhibit 10.4 to Waxman Industries, Inc.'s
Annual Report on Form 10-K for the year ended June
30, 1991, File No. 0-5888, incorporated herein by
reference).
10.4(1) Form of Stock Option Agreement between Waxman
Industries, Inc. and its Directors (Exhibit 10.5 to
Waxman Industries, Inc.'s Annual Report on Form
10-K for the year ended June 30, 1991, File No.
0-5888, incorporated herein by reference).
10.5(1) Employment Contract dated January 1, 1992 between
Waxman Industries, Inc. and John S. Peters (Exhibit
10.6 to Waxman Industries, Inc.'s Annual Report on
Form 10-K for the year ended June 30, 1992, File
No. 0-5888, incorporated herein by reference).
10.6 Employment Agreeement dated November 1, 1994 between
Waxman Consumer Products Group Inc. and Laurence Waxman.
10.7(1) Tax Sharing Agreement dated May 20, 1994 among
Waxman Industries, Waxman USA, Barnett Inc. ,
Waxman Consumer Products Group Inc., WOC Inc. and
Western American Manufacturing, Inc. (Exhibit 10.6
to Waxman Industries, Inc.'s Form S-4 filed June
20, 1994, incorporated herein by reference).
10.8(1) Intercorporate Agreement dated May 20, 1994 among
Waxman Industries, Waxman USA, Barnett Inc.,
Waxman Consumer Products Group Inc., WOC Inc. and
Western American Manufacturing, Inc. (Exhibit 10.7
to Waxman Industries, Inc.'s Form S-4 filed June
20, 1994, incorporated herein by reference).
</TABLE>
II-8
<PAGE> 31
<TABLE>
<CAPTION>
Exhibit Number Exhibit Index Sequential Page Number
- -------------- ------------- ----------------------
<S> <C> <C>
10.9(1) Credit Agreement dated as of May 20, 1994 among
Waxman USA, Inc., Barnett Inc., Waxman Consumer
Products Group Inc. and WOC Inc., the Lenders and
Issuers party thereto and Citicorp USA, Inc., as
Agent, and certain exhibits thereto (Exhibit 10.8
to Waxman Industries, Inc.'s Form S-4 filed June
20, 1994, incorporated herein by reference).
10.10(1) Term Loan Credit Agreement dated as of May 20, 1994
among Waxman USA, Inc., Barnett Inc., Waxman
Consumer Products Group, Inc. and WOC Inc., the
Lenders and Issuers party thereto and Citibank,
N.A., as Agent (Exhibit 10.9 to Waxman Industries,
Inc.'s Form S-4 filed June 20, 1994, incorporated
herein by reference).
10.11 Amendment No. 2 to the Term Loan Agreement and Amendment
No. 1 to the Revolving Credit Agreement among Waxman USA,
Inc., Barnett Inc., Waxman Consumer Products Group Inc. and
WOC Inc., the Lenders and Issuers party thereto and Citibank,
N.A., as Agent.
12.1(1) Statement re: computation of ratios (Exhibit 12.1
to Waxman Industries, Inc.'s Form S-1, filed July
18, 1995, incorporated herein by reference).
13.1(1) Form 10-K Annual Report of Waxman Industries, Inc.
for the year ended June 30, 1995, File No. 33-5888
(incorporated herein by reference).
23.1 Consent of Arthur Andersen LLP.
23.2(1) Consent of Shereff, Friedman, Hoffman
</TABLE>
II-9
<PAGE> 32
<TABLE>
<CAPTION>
Exhibit Number Exhibit Index Sequential Page Number
- -------------- ------------- ----------------------
<S> <C> <C>
& Goodman, LLP (contained in its opinion filed as
Exhibit 5.1 to this Registration Statement).
24.1 Power of Attorney (included in Part II of this
Registration Statement).
</TABLE>
- ------------------
(1) Incorporated herein by reference as indicated.
II-10
<PAGE> 1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
3rd day of February 1995, and effective as of November 1, 1994 (the "Effective
Date"), by and between Waxman Consumer Products Group Inc. (the "Company"), and
Laurence Waxman ("Executive").
W I T N E S S E T H :
WHEREAS, Executive has been employed by the Company, or its
predecessor, for more than 15 years, and is currently the President of the
Company;
WHEREAS, Executive possesses an intimate knowledge of the business and
affairs of the Corporation, its policies, records, personnel and business
relationships;
WHEREAS, the Company desires to continue to employ Executive, and
Executive is willing to continue to be employed by the Company upon the terms
and subject to the conditions in this Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the adequacy
and receipt of which are hereby acknowledged, the parties agree as follows:
1. Employment. The Company hereby employs Executive and Executive
hereby accepts employment with the Company for the Term (as defined in Section
2 below) of this Agreement, in the position and with the duties and
responsibilities set forth in Section 3 below and upon the other terms and
subject to the conditions hereinafter stated.
2. Term.
The initial term (the "Initial Term") of this Agreement shall commence
on the Effective Date and shall continue until the fifth anniversary of the
Effective Date (the "Initial Expiration Date"); provided, however, that this
Agreement at all times shall be subject to earlier termination in accordance
with the provisions hereof. On the Initial Expiration Date and each
anniversary of the Initial Expiration Date, the term of this Agreement
automatically shall be extended for an additional one year term (the "Extended
Term") unless either party hereto shall have provided written notice to the
other party hereto of its, or his, intent not to
<PAGE> 2
extend this Agreement not less than one year prior to the end-of-the-Initial
Term or the Extended Term, as the case may be. For purposes of this Agreement,
"Term" means the Initial Term and, if so extended, the Extended Term.
3. Position, Duties and Responsibilities.
3.1 Position, Duties and Responsibilities. During the Term, Executive
shall serve as the President of the Company, and shall be responsible for the
duties attendant to such office, which duties will be generally consistent with
his position as an executive officer of the Company and which will generally
utilize his experience with the Company prior to the date hereof, and such
other managerial duties and responsibilities with the Company, its affiliates,
subsidiaries or divisions as may be assigned by the Board of Directors of the
Company (the "Board") and agreed to by Executive. Executive will report
directly to the Chairman of the Board and the Board and, while the Company is a
subsidiary of Waxman Industries, Inc. ("Waxman"), to the Co-Chairman of the
Board and Co-Chief Executive Officers of Waxman. The Company intends that
Executive will continue to be elected to and serve as a member of the Board.
Executive shall also serve as an officer and/or member of the Board of
Directors of any subsidiary or affiliate of the Company, if the Board should so
request. Executive's duties shall be performed principally at the Company's
executive offices which are located in the Cleveland Metropolitan Area (as
defined below), and Executive shall not be required to perform duties which
would necessitate changing his present residence, unless Executive otherwise
agrees in writing. For purposes of this Agreement, the term "Cleveland
Metropolitan Area" shall encompass the City of Cleveland and the territory
within fifty miles from that city in any direction. The Company will promptly
pay (or reimburse Executive for) all reasonable moving expenses incurred by
Executive relating to a change of Executive's residences in connection with any
such relocation to which Executive has consented. In connection with any such
change of residences, the Company shall, at the request of Executive, purchase
from Executive the residence which he is required to vacate; provided, however,
that such request must be made within six months of his commencement of
full-time employment at the Company's relocated executive offices. The purchase
price of such residence shall be the average of the appraisals rendered by two
appraisers retained by the Company, one of whom shall be selected by Executive.
Executive acknowledges and agrees that, in connection with his employment
hereunder, he may be required to travel on behalf of the Company. To the extent
that any Executive relocation benefit program maintained by the Company, in
which Executive is entitled to participate, is more favorable to Executive than
the provisions of this Agreement with respect to relocation, Executive shall
be entitled to such additional relocation benefits.
3.2 Services to be Provided. During the Term, Executive shall devote
all of his working time, attention and energies to the affairs of the Company
and its subsidiaries, affiliates and divisions and use his best efforts in the
performance of his duties to promote its and their best interests; provided,
however, that nothing herein shall preclude Executive from
-2-
<PAGE> 3
(i) serving on the boards of directors of a reasonable number of other
corporations, trade associations or charitable organizations, (ii) engaging in
charitable activities and community affairs or (iii) managing his personal
investments and affairs; provided, however, that such activities do not
interfere with the performance of Executive's duties under the Agreement.
4. Salary
4.1 Base Salary. During the Term, Executive shall be paid a base salary
(the "Base Salary"), payable in equal installments at such intervals as the
other executive officers of the Company are paid but not less often than
bi-weekly, at an annual rate of two hundred thousand dollars ($200,000) until
the first anniversary of the Effective Date. For each succeeding year during
the Term, the annual rate of the Base Salary shall be increased by an amount
equal to six percent (6%) of the Base Salary in effect for the preceding year.
4.2 Annual Cash Bonus. During the Term, Executive shall participate in
any bonus/incentive compensation programs available to senior executive
officers of the Company as may be adopted by the Company, including the 1994
Waxman Consumer Products Group Inc. Bonus Program. Executive shall be entitled
to receive a bonus pursuant to this Section 4.2 of not less than $50,000 with
respect to the Company's fiscal year ending June 30, 1995.
4.3 Equity Opportunity. During the Term, Executive shall be eligible
for stock option grants and similar awards under existing plans of the Company
(and, if applicable, under existing plans of Waxman), and under any future
plans adopted and administered by the Board in which executive officers of the
Company are entitled to participate.
5. Employee Benefits.
5.1 Benefit Programs. During the Term, Executive shall participate with
other members of senior management of the Company in any pension,
profit-sharing, stock option or similar plan or program of the Company now
existing or established hereafter for the benefit of its employees or senior
executives of the Company or its subsidiaries generally, to the extent that he
remains eligible under the general provisions thereof. Executive shall also be
entitled to participate in any group insurance, hospitalization, medical,
health and accident, disability or similar or nonsimilar plan or program of the
Company now existing or established hereafter for the benefit of its employees
or senior executives of the Company and its subsidiaries generally, to the
extent that he is eligible under the general provisions thereof.
5.2 Automobile. During the Term, the Company shall provide Executive
with an automobile (BMW 500 series or comparable automobile), such automobile
to be not more than three years old, to be used by him in connection with the
Company's business; and
-3-
<PAGE> 4
shall be responsible for all reasonable costs of repairing, maintaining and
insuring such automobile.
5.3 Medical Expense Reimbursement. During the Term, in addition to the
benefits to be provided to Executive pursuant to Section 5.5 hereof, Executive
shall be entitled to reimbursement for expenses not reimbursed by insurance or
otherwise for "medical care" (as such term in defined in Section 213 of the
Internal Revenue Code of 1986, as amended) for himself and his immediate
family; provided, however, that such reimbursement shall not exceed $5,000 per
annum.
5.4 Insurance. During the Term, the Company, at its sole expense, shall
purchase and maintain (a) a life insurance policy on the life of Executive in
the amount of $100,000, the beneficiary or beneficiaries of which shall be
designated by Executive, and (b) a long-term disability insurance policy which
shall provide that, upon the occurrence of a "disability" as defined in such
disability insurance policy, Executive shall be entitled to long-term
disability benefits each year thereafter in an amount equal to the lesser of
(x) 70% of Base Salary and (y) $15,000 per month. In addition, the Company
shall pay $12,500 per annum with respect to the split-dollar life insurance
program of which Executive is the named insured which is in effect on the
Effective Date of this Agreement.
5.5 Vacation; Personal Days. During the Term, Executive shall be
entitled to four (4) weeks annual vacation with pay during each year of his
employment hereunder provided that the vacation days taken do not interfere
with the operations of the Company. Such vacation may be taken, in Executive's
discretion, at such time or times as are not inconsistent with the reasonable
business needs of the Company. Executive shall not be entitled to any
additional compensation in the event that Executive, for whatever reason, fails
to take such vacation during any year of his employment hereunder; provided
however, that Executive shall be entitled to take up to an additional two week
vacation with pay during any year if, and to the extent, that Executive did not
take such vacation days in the immediately preceding year. Executive shall also
be entitled to all paid holidays given by the Company to its executives.
Executive shall also be entitled to such additional time off with pay as is
necessary for the observance of all religious holidays which are observed by
Executive.
5.6 Other Perquisites. During the Term, the Company shall pay the dues,
and other membership costs, incurred by Executive for his continuing membership
in the Beechmont Country Club.
6. Expenses. The Company shall reimburse Executive upon presentation
of appropriate vouchers or receipts and in accordance with the Company's
expense reimbursement policies, for all reasonable expenses incurred by
Executive in connection with the performance of his duties under this
Agreement.
-4-
<PAGE> 5
7. Consequences of Termination of Employment.
7.1 Death. In the event of the death of Executive during the Term,
Executive's employment hereunder shall be terminated as of the date of his
death and Executive's designated beneficiary, or, in the absence of such
designation, the estate or other legal representative of Executive
(collectively, the "Estate"), shall be paid within thirty (30) days of
Executive's death, an amount equal to the sum of Executive's unpaid Base Salary
through the month in which Executive's death occurred.
7.2 Disability. In the event Executive shall be unable to render the
services or perform his duties hereunder by reason of illness, injury or
incapacity (whether physical, mental, emotional or psychological) for a period
of either (i) one hundred eighty (180) consecutive days or (ii) two hundred
seventy (270) days in any consecutive three hundred sixty-five day period
(either of such events shall constitute a "Disability" for purposes of this
Agreement), the Company shall have the right to terminate this Agreement by
giving ten (10) days prior written notice to Executive. If Executive's
employment hereunder is so terminated, (i) Executive shall be paid within thirty
(30) days of Executive's termination (x) any unpaid Base Salary through the
month in which the termination occurred and (y) an amount equal to the product
of (1) the bonus, if any, paid to Executive pursuant to Section 4.2 hereof with
respect to the fiscal year immediately preceding the year in which Executive's
employment is terminated pursuant to this Section 7.2 and (2) a fraction, the
numerator of which is the number of days during which the Executive rendered
services and performed his duties hereunder during the fiscal year in which his
employment hereunder is terminated and the denominator of which is 365 and
(ii) the Company shall continue to provide to, or for the benefit of, Executive,
during the twelve consecutive months period commencing on the date of
termination of Executive's employment hereunder, the benefits provided to
Executive pursuant to Sections 5.1, 5.2, 5.3 and 5.4 hereof, to the extent such
continued participation is permitted in accordance with the applicable benefit
plans. The amount provided for above shall be reduced by any disability benefits
received by Executive with respect to the period prior to his termination.
Notwithstanding the foregoing provisions of this Section 7.2, Executive shall be
entitled to receive the Base Salary from the date his employment hereunder is
terminated pursuant to Section 7.2 until the date upon which Executive commences
receiving payments of disability benefits under the disability benefit programs
maintained by the Company (the "Disability Payment Commencement Date"). Within
thirty (30) days of the Disability Payment Commencement Date, Executive shall
repay to the Company the full amount of all Base Salary paid to Executive during
the period commencing on the date his employment hereunder was terminated
pursuant to this Section 7.2 and ending on the Disability Payment Commencement
Date.
7.3 Termination of Employment of Executive by the Company for Cause.
In the event Executive is terminated for Cause (as defined below), Executive
shall be paid his Base Salary and benefits in accordance with the Company's
plans through the date of
-5-
<PAGE> 6
termination. The term "Cause," as used herein, shall mean (a) Executive's
willful misconduct or gross neglect in the performance of his duties hereunder
which in either case has resulted, or is likely to result, in material economic
damage to the Company, (b) the material breach of this Agreement by Executive
which has resulted, or is likely to result, in material economic damage to the
Company or (c) the conviction of Executive of a felony which constitutes a
crime of moral turpitude. For purposes of this Section 7.3(a), no act, or
failure to act, on Executive's part, will be considered "willful" unless done
or omitted to be done by him not in good faith and without a reasonable belief
that his action or omission was in furtherance of the Company's business.
Termination of employment of Execution pursuant to this Section 7.3
shall be made by delivery to Executive of a letter from the Board or the
Chairman of the Board generally setting forth a description of the particulars
of the conduct which provides the basis for a termination of employment of
Executive for Cause. Within ten business days of Executive's receipt of such
letter, Executive shall be provided an opportunity, together with his counsel,
to present and discuss the matter with the Board. Following such preceding,
the Board may, by majority vote of the full Board (without counting Executive)
terminate the employment of Executive for Cause.
7.4 Termination of Employment by the Company Other than for Cause,
Death or Disability. Executive's employment hereunder also may be terminated
at the election of the Company other than for Cause, death or Disability;
provided, however, in the event Executive's employment is terminated other than
for Cause, death or Disability, all of the remaining payments due hereunder
would be accelerated and Executive shall be entitled to a lump sum payment in
an amount equal to the amount of his full compensation pursuant to Section 4
hereof for a period equal to the remainder of the Term. Such payment shall be
made within thirty (30) days of the effective date of the termination of
Executive's employment under this Agreement.
7.5 Termination of Employment by Executive for Good Reason.
In the event Executive terminates his employment hereunder for Good
Reason (as defined below), Executive shall receive in a lump sum payment an
amount equal to the sum of (i) his Base Salary, (as such Base Salary would have
been adjusted pursuant to Section 4.1 hereof during the remainder of the Term),
for a period equal to the greater of (w) the remainder of the Term of this
Agreement or (x) two years, and (ii) the product of (y) the average of the
bonus compensation paid to Executive with respect to the three years preceding
the year in which Executive terminates his employment for a Good Reason,
whether or not such years are part of the Term, multiplied by (z) the greater
of (A) the number of years (and portions thereof calculated to the nearest
tenth) remaining in the term of this Agreement, and (B) two years. The term
"Good Reason" for purposes of this Section 7.5 only shall mean (i) the Company
shall have materially breached the provisions of this Agreement which breach
shall continue for at least 30 days (except that the termination of Executive's
employment by
-6-
<PAGE> 7
the Company pursuant to Sections 7.2, 7.3 or 7.4 shall not be deemed a breach
of this Agreement provided that the Company shall otherwise be in compliance
with the terms of this Agreement), (ii) the assignment to Executive by the
Board and/or Chairman of the Board of duties materially inconsistent with
Executive's position (including status, corporate office, title or reporting
responsibility), authority, duties or responsibilities as contemplated by
Section 3 of this Agreement, or any action by the Board or Chairman of the
Board which results in a material diminution of the position, authority, duties
or responsibilities of Executive as contemplated by Section 3 of this Agreement
or (iii) the Company shall have materially reduced the benefits and/or
perquisites provided to Executive pursuant to Section 5.1 hereof, unless all
members of senior management of the Company are similarly affected.
7.6 Termination of Employment by Executive Other than for Good Reason.
Executive's employment hereunder also may be terminated at the election of
Executive other than for Good Reason, in which case Executive shall be limited
to the same rights and benefits as provided herein in connection with a
termination of this Agreement by the Company for Cause.
7.7 Payments and Benefits. Any payments or benefits payable to
Executive hereunder in respect of any year during which Executive is employed
by the Company for less than the entire such year, unless otherwise provided in
the applicable plan or arrangement or this Agreement, shall be prorated in
accordance with the number of days in such year during which he is so employed.
8. Confidential Information.
8.1 Executive hereby acknowledges that, in the course of his employment
by the Company, he has had and will have access to secret and confidential
information which relates to or affects all aspects of the business and affairs
of the Company, its subsidiaries, affiliates or divisions (individually, a
"Company Affiliate" and collectively, the "Company Affiliates"), and which are
not available to the general public ("Confidential Information"). Without
limiting the generality of the foregoing, Confidential Information shall
include information relating to inventions (including, without limitation,
Inventions), developments, specifications, technical and engineering data,
information concerning the filing or pendency of patent applications, business
ideas, trade secrets, products under development, production methods and
processes, sources of supply, marketing plans, and the names of any customers
or prospective customers or of any persons who have or shall have traded or
dealt with the Company. Accordingly, Executive agrees that, except as required
by the performance of his duties hereunder, he will not, at any time directly
or indirectly, disclose or furnish, or negligently permit to be disclosed or
furnished, any Confidential Information to any person, firm, corporation or
other entity without the express prior written consent of (x) the Company and
(y) with respect to Confidential Information relating to Waxman and its
affiliates (other than the Company and its subsidiaries), Waxman.
-7-
<PAGE> 8
8.2 Executive hereby acknowledges and agrees that any and all models,
prototypes, notes, memoranda, notebooks, drawings, records, plans, documents or
other material in physical form which contain or embody Confidential
Information and/or information relating to Inventions and/or information
relating to the business and affairs of any Company Affiliate, and/or the
substance thereof, whether created or prepared by Executive or by others
("Confidential Materials"), which are in Executive's possession or under his
control, are the sole property of the Company. Accordingly , Executive hereby
agrees that, upon the termination of his employment with the Company, whether
pursuant to this Agreement or otherwise, or at the Company's earlier request,
Executive shall return to the Company all Confidential Materials and all copies
thereof in his possession or under his control and shall not retain any copies
of Confidential Materials.
9. Non-Competition.
9.1 Executive agrees that he shall not, so long as he shall be employed
by any Company Affiliate in any capacity (whether pursuant to this Agreement or
otherwise) directly or indirectly, own, manage, operate, control or participate
in the ownership, management, operation or control or be employed by or
connected in any manner with, any business, firm or corporation which is or may
be in competition, directly or indirectly, with the business of any Company
Affiliate without the express written consent of (x) the Company and (y) if the
activity or proposed activity affects, or may affect, Waxman or any of its
affiliates (other than the Company or its subsidiaries), Waxman; provided,
however, that if the Company is no longer a subsidiary of Waxman and if, at the
time the Company ceases being a subsidiary of Waxman, the Company and/or any
entity then affiliated with the Company was in competition, directly or
indirectly, with any Company Affiliate (other than the Company and its
subsidiaries), then Executive may continue his then current duties with the
Company and/or any entity then affiliated with the Company to the extent and
only to the extent that such duties do not support or facilitate an increase in
the level of competition between the Company and/or any entity then affiliated
with the Company, on the one hand, and any Company Affiliate (other than the
Company and its subsidiaries), on the other hand, from that which existed at
the time the Company ceased being a subsidiary of Waxman. The Company
acknowledges that its current business activities do not compete with the
current business activities of any other Company Affiliate.
9.2 Executive agrees that for a period commencing on the effective date
of the termination of his employment with the Company (for any reason
whatsoever) and concluding upon the earlier to occur of (a) twenty four (24)
months after such termination date and (b) the date subsequent to such
termination date upon which the Company is in material breach of any material
provision of this Agreement (provided that Executive notifies the Company in
writing of such breach and the Company does not cure such breach within ten
(10) days of the receipt of such notice from Executive), Executive shall not
directly or indirectly, own, manage, operate, control or participate in the
ownership, management,
-8-
<PAGE> 9
operation or control, or be employed by or connected in any manner with, any
business, firm or corporation which is engaged in any business activity
competitive, directly or indirectly, with the business of any Company Affiliate
as such businesses are constituted on the effective date of the termination of
Executive's employment with the Company, including, for these purposes, any
business with respect to which, at the termination of his employment, Executive
was aware that there was a bona fide intention on the part of any Company
Affiliate to engage in the future and with respect to which such Company
Affiliate had formulated plans to engage in the future (a "Prospective Business
Activity"), without the express prior written consent of (w) the Company and
(x) if the activity or proposed activity affects, or may affect, Waxman or any
of its affiliates (other than the Company or its subsidiaries), Waxman. For
purposes of this Section 9.2, (y) only businesses of a Company Affiliate in
which Executive is engaged or with respect to which Executive has access to
Confidential Information shall be included within the scope of this Section 9.2
and (z) if any Company Affiliate does not in fact engage in a Prospective
Business Activity within one year of the date of the termination of Executive's
employment hereunder, then such Company Affiliate shall be deemed not to have
had a bona fide intention to engage in such Prospective Business Activity.
9.3 Anything to the contrary herein notwithstanding, the provisions of
this Section 9 shall not be deemed violated by the purchase and/or ownership by
Executive of shares of any class of equity securities (or options, warrants or
rights to acquire such securities, or any securities convertible into such
securities) (x) of the Company or Waxman (or any successor thereto), (y)
representing (together with any securities which would be acquired upon the
exercise of any such options, warrants or rights or upon the conversion of any
other security convertible into such securities) five percent (5%) or less of
the outstanding shares of any such class of equity securities of any issuer
whose securities are traded on a national securities exchange or listed by
NASDAQ, the National Quotation Bureau Incorporated or any similar organization;
provided, however, that Executive shall not be otherwise connected with or
active in the business of the issuers described in this Section 9.3 or (z) of
any entity which is then employing Executive.
10. Remedy For Breach. Executive hereby acknowledges that in the event
of any breach or threatened breach by him of any of the provisions of Sections
8 or 9 of this Agreement, the Company and the Company Affiliates would have no
adequate remedy at law and could suffer substantial and irreparable damage.
Accordingly, Executive hereby agrees that, in such event, the Company and the
Company Affiliates shall be entitled, and notwithstanding any election by the
Company and such Company Affiliates to claim damages, to obtain a temporary
and/or permanent injunction (without proving a breach therefor) to restrain any
such breach or threatened breach or to obtain specific performance of any such
provisions, all without prejudice to any and all other remedies which the
Company and the Company Affiliates may have at law or in equity.
-9-
<PAGE> 10
11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given if delivered personally or
sent by registered or certified mail (return receipt requested), postage
prepaid, or by telecopy (immediately followed by telephone confirmation of
delivery of such telecopy with the intended recipient of such notice and by
notice in writing sent promptly by registered or certified mail as provided
above) to the parties to this Agreement at the following addresses or at such
other address for a party as shall be specified by like notice:
To the Company: Waxman Consumer Products Group Inc.
24455 Aurora Road
Bedford Heights, OH 44146
Telephone: (216) 439-1830
Telecopy:
Attention: Chairman of the Board
With copies to: Scott M. Zimmerman, Esq.
Shereff, Friedman, Hoffman
& Goodman
919 Third Avenue
New York, New York 10022
Telephone: (212) 758-9500
Telecopy: (212) 758-9526
To Waxman: Waxman Industries, Inc.
24460 Aurora Road
Bedford Heights, Ohio 44146
Telephone: (216) 439-1830
Telecopy: (216) 439-8678
Attention: President
With copies to: Scott M. Zimmerman, Esq.
Shereff, Friedman, Hoffman
& Goodman
919 Third Avenue
New York, New York 10022
Telephone: (212) 758-9500
Telecopy: (212) 758-9526
To Executive: Laurence Waxman
25085 Penhurst Drive
Beechwood, Ohio 44122
-10-
<PAGE> 11
Telephone: (216) 591-0409
With a Copy to: Marc H. Morgenstern
Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A.
The Tower at Erieview
Suite 2600
Cleveland, Ohio 44114-1824
Telephone: (216) 696-3311
Telecopy: (216) 696-1109
All such notices and communications shall be deemed to have been
received on the date of personal delivery, on the date that the telecopy is
confirmed as having been received or on the third business day after the
mailing thereof, as the case may be.
12. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the employment matters contemplated
herein and supersedes all prior agreements or understandings among the parties
related to such employment matters.
13. Binding Effect: Third Party Beneficiaries. Except as otherwise
provided herein, this Agreement shall be binding upon and inure to the benefit
of the Company and its successors and assigns and upon Executive. "Successors
and assigns" shall mean, in the case of the Company, any successor pursuant to
a merger, consolidation, or sale, or other transfer of all or substantially all
of the assets of the Company. The parties hereto agree that Waxman and each of
its affiliates (other than the Company) are third party beneficiaries of the
obligation of Executive contained in Sections 8, 9 and 10, and shall be
entitled to enforce the provisions thereof as if each were a party to this
Agreement.
14. No Assignment. Except as contemplated by Section 13 above, this
Agreement shall not be assignable or otherwise transferable by either party.
15. Amendment or Modification: Waiver. No provision of this Agreement
may be amended or waived unless such amendment or waiver is authorized by the
Chairman of the Board or the Board and is agreed to in writing, signed by
Executive and by an officer of the Company thereunto duly authorized; provided
further that Sections 8, 9 and 10 hereof may not be amended or modified except
by prior written consent of Waxman. Except as otherwise specifically provided
in this Agreement, no waiver by either party hereto of any breach by the other
party hereto of any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of a similar or dissimilar provision
or condition at the same or at any prior or subsequent time.
-11-
<PAGE> 12
16. Fees and Expenses. The Company will reimburse Executive for the
reasonable attorney's fees incurred by him in connection with the negotiation
and preparation of this Agreement. If either party institutes any action or
proceedings to enforce any rights the party has under this Agreement, or for
damages by reason of any alleged breach of any provision of this Agreement, or
for a declaration of each party's rights or obligations hereunder or to set
aside any provision hereof, or for any other arbitral or judicial remedy, each
party shall be responsible for its own costs and expenses incurred thereby,
including but not limited to, attorneys' fees and disbursements.
17. Governing Law: Arbitration. The validity, interpretation,
construction, performance and enforcement of this Agreement shall be governed
by the internal laws of the State of Ohio, without regard to its conflicts of
law rules. Any controversy or claim arising out of or relating to this
Agreement, shall be settled by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon such award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. The
arbitration shall be held in Cleveland or such other place as may be agreed
upon at the time by the parties to the arbitration.
18. Titles. Titles to the Sections and subsections in this Agreement
are intended solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any Section.
19. Counterparts. This Agreement may be executed in one or more
counterparts, which together shall constitute one agreement. It shall not be
necessary for each party to sign each counterpart so long as each party has
signed at lease one counterpart.
20. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms and
provisions of this Agreement in any other jurisdiction.
-12-
<PAGE> 1
EXHIBIT 4.25
AMENDMENT NO. 2
TO THE
TERM LOAN AGREEMENT
AND
AMENDMENT NO. 1
TO THE
REVOLVING CREDIT AGREEMENT
Amendment (the "Amendment"), dated as of September __, 1995, among
WAXMAN USA INC. (the "Company"), BARNETT INC., WAXMAN CONSUMER PRODUCTS GROUP
INC. and WOC INC. (the "Borrowers"), each a Delaware corporation; the financial
institutions listed on the signature pages hereof as a "Term Loan Lender" (each
individually a "Term Loan Lender" and collectively the "Term Loan Lenders");
the financial institutions listed on the signature pages hereof as a "Revolving
Credit Lender" (each individually a "Revolving Credit Lender" and collectively
the "Revolving Credit Lenders" and, together with the Term Loan Lenders, the
"Lenders"); CITIBANK, N.A. ("Citibank"), as agent for the Term Loan Lenders (in
such capacity, the "Term Loan Agent"); and CITICORP USA, INC., as agent for the
Revolving Credit Lenders (in such capacity, the "Revolving Credit Agent" and,
together with the Term Loan Agent, collectively, the "Agent").
W I T N E S S E T H
WHEREAS, the Company, the Borrowers, the Term Loan Lenders and the Term
Loan Agent have entered into a TERM LOAN CREDIT AGREEMENT, dated as of May 20,
1994 (as such agreement may be amended, modified, extended or refinanced from
time to time) (the "Term Loan Credit Agreement");
WHEREAS, the Company, the Borrowers, the Revolving Credit Lenders and
the Revolving Credit Agent have entered into a REVOLVING CREDIT AGREEMENT,
dated as of May 20, 1994 (as such agreement may be amended, modified, extended
or refinanced from time to time) (the "Revolving Credit Agreement" and,
together with the Term Loan Credit Agreement, the "Credit Agreements");
WHEREAS, the Company and the Borrower have requested that the Lenders
amend Article V of the Credit Agreements;
<PAGE> 2
NOW THEREFORE, in consideration of the premises and the covenants and
the agreements contained herein, the parties hereto agree as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to them in the Credit Agreements.
Unless otherwise indicated, references herein to an Exhibit, Schedule, Article,
Section, subsection or clause refer to the appropriate Exhibit, or Schedule to,
or Article, Section or subsection in the Credit Agreements.
Section 2. Amendment. On the terms and subject to the conditions set
forth herein, the Lenders, at the request of the Company, hereby amend the
Credit Agreements as follows:
(a) The definition of "Trigger Event" is hereby amended by amending the
schedule set forth therein for the following Fiscal Quarters to read as follows:
September 30, 1995 1.30
December 31, 1995 1.30
March 31, 1996 1.40
June 30, 1996 1.50
(b) Article V is hereby amended by deleting ARTICLE V and replacing it
with the following:
"ARTICLE V"
FINANCIAL COVENANTS
From and after the Closing Date and as long as any of the
Obligations or Commitments remain outstanding, unless the Majority
Lenders otherwise consent in writing, the Company and each Borrower
agree with the Lenders and the Agent that (it being understood that
for the period from April 1, 1995 through March 31, 1996, all non-
recurring charges or reserves taken by the Company and its Subsidiaries
in connection either with the restructuring of Waxman Consumer
Products Group, Inc. or the sale of Waxman Consumer Products Group,
Inc. should not be included for purposes of determining whether a
breach has occurred pursuant to this Article V; it being further under-
stood that this shall not be deemed a consent to any such sale or
restructuring):
2
<PAGE> 3
5.1. MAXIMUM LEVERAGE RATIO. The Company shall maintain at the end of
each Fiscal Quarter set forth below on a consolidated basis, a ratio of
(a) Total Liabilities to (b) EBITDA for the 12 months then ending (or in the
case of the Fiscal Quarter ending June 30, 1994, the product of four and EBITDA
for the three months then ending or in the case of the Fiscal Quarter ending
September 30, 1994, the product of two and EBITDA for the six months then
ending or, in the case of the Fiscal Quarter ending December 31, 1994, the
product of 1.333 and EBITDA for the nine months then ending) not in excess of
the ratio set forth below opposite such Fiscal Quarter.
<TABLE>
<CAPTION>
For the
Fiscal Quarter Ending on Maximum Ratio
- ------------------------ -------------
<S> <C>
June 30, 1994 7.0
September 30, 1994 7.0
December 31, 1994 7.0
March 31, 1995 7.0
June 30, 1995 6.5
September 30, 1995 6.0
December 31, 1995 6.0
March 31, 1996 5.6
June 30, 1996 and thereafter 5.6
</TABLE>
5.2 FIXED CHARGE COVERAGE RATIO. The Company shall maintain at the
end of each Fiscal Quarter set forth below, a ratio of (a) EBITDA less Capital
Expenditures (other than in respect of Capitalized Leases) less income taxes
paid to (b) Fixed Charges, in each case determined on the basis of the four
Fiscal Quarters ending on the date of determination (except that (i) in the
case of the Fiscal Quarter ending June 30, 1994, such determination shall be
made based on the three months then ending, (ii) in the case of the Fiscal
Quarter ending September 30, 1994, such determination shall be made based on
the six months then ending, and (iii) in the case of the Fiscal Quarter ending
December 31, 1994, such determination shall be based on the nine months then
ending), not less than the ratio set forth below opposite such Fiscal Quarter:
3
<PAGE> 4
<TABLE>
<CAPTION>
For the
Fiscal Quarter Ending on Minimum Ratio
- ------------------------ -------------
<S> <C>
June 30, 1994 1.05
September 30, 1994 1.10
December 31, 1994 1.10
March 31, 1995 1.05
June 30, 1995 1.05
September 30, 1995 0.95
December 31, 1995 0.90
March 31, 1996 0.95
June 30, 1996 1.00
September 30, 1996 1.00
December 31, 1996 1.00
March 31, 1997 1.00
June 30, 1997 and thereafter 1.30
</TABLE>
5.3 MAINTENANCE OF ADJUSTED NET WORTH. The Company shall maintain at
the end of each month set forth below an Adjusted Net Worth of not less than
the minimum amount set forth below for such month (it being understood that
(13,000,000) is less than (11,000,000)):
<TABLE>
<CAPTION>
For each Minimum Adjusted
Fiscal Quarter Ending on Net Worth
- ------------------------ ----------------
<S> <C>
June 30, 1994 $20,000,000
September 30, 1994 20,600,000
December 31, 1994 21,250,000
March 31, 1995 22,000,000
June 30, 1995 33,000,000
September 30, 1995 36,000,000
December 31, 1995 41,500,000
March 31, 1996 46,500,000
June 30, 1996 and thereafter 52,000,000
</TABLE>
5.4 CAPITAL EXPENDITURES. The Borrowers shall not permit any Capital
Expenditures the result of which is that the Capital Expenditures for the
period from December 31, 1993 until such date is in excess of the maximum
amount set forth below for such Fiscal Quarter in which such date falls:
4
<PAGE> 5
<TABLE>
<CAPTION>
Maximum Amount of
Fiscal Quarter Ending on Capital Expenditures
- ------------------------ --------------------
<S> <C>
June 30, 1994 $1,750,000
September 30, 1994 2,750,000
December 31, 1994 3,750,000
March 31, 1995 4,750,000
June 30, 1995 5,600,000
September 30, 1995 6,200,000
December 31, 1995 7,500,000
March 31, 1996 8,200,000
June 30, 1996 9,000,000
September 30, 1996 9,200,000
December 31, 1996 9,400,000
March 31, 1997 10,000,000
June 30, 1997 10,600,000
September 30, 1997 11,200,000
December 31, 1997 11,800,000
March 31, 1998 12,500,000
</TABLE>
5.5. EBITDA to Total Cash Interest Ratio. The Company shall maintain
at the end of each Fiscal Quarter set forth below a ratio of EBITDA to Cash
Interest Expense, in each case determined based on the four Fiscal Quarters
ending on the date of determination (except that (i) in the case of the Fiscal
Quarter ending June 30, 1994, such determination shall be made based on the
three months then ending, (ii) in the case of the Fiscal Quarter ending
September 30, 1994, such determination shall be made based on the six months
then ending, and (iii) in the case of the Fiscal Quarter ending December 31,
1994, such determination shall be based on the nine months then ending) of not
less than the ratio set forth below for such Fiscal Quarter:
5
<PAGE> 6
<TABLE>
<CAPTION>
For each Fiscal Quarter
Ending on Minimum Ratio
- ------------------------ -------------
<S> <C>
June 30, 1994 1.25
September 30, 1994 1.30
December 31, 1994 1.30
March 31, 1995 1.35
June 30, 1995 1.35
September 30, 1995 1.29
December 31, 1995 1.29
March 31, 1996 1.35
June 30, 1996 1.45
September 30, 1996 1.45
December 31, 1996 1.45
March 31, 1997 1.50
June 30, 1997 1.50
September 30, 1997 1.75
December 31, 1997 1.75
March 31, 1998 1.75
</TABLE>
Section 3. CONDITIONS PRECEDENT TO EFFECTIVENESS.
3.1. CONDITIONS PRECEDENT. This Amendment shall become effective
on the date (the "Effective Date") upon which the agent shall have received
executed counterparts of this Amendment from the Majority Lenders (as defined
under the Term Loan Credit Agreement) and the Majority Lenders (as defined
under the Revolving Credit Agreement).
Section 4. MISCELLANEOUS.
4.1 REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Except for the amendments specified above, the Credit Agreements,
the Collateral Documents (as defined in each of the Credit Agreements) and each
other Loan Document (as defined in each of the Credit Agreements) shall remain
and continue to be in full force and effect in accordance with their respective
terms, and the Credit Agreement and each Collateral Document is hereby
ratified, confirmed and acknowledged by each party thereto.
(b) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as an amendment or waiver of
any right, power or remedy of any Borrower, Lender, Agent or the Company under
the Credit Agreements or the Loan Documents nor constitute an amendment or
waiver of any provision of
6
<PAGE> 7
any of the Collateral Documents or any of the other Loan Documents.
4.2 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.3 Section Titles. The section titles contained in this Amendment
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
4.4 Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
WAXMAN USA INC.
By:___________________________________
Title:
Borrowers
BARNETT INC.
By:___________________________________
Title:
WOC INC.
By:__________________________________
Title:
WAXMAN CONSUMER PRODUCTS GROUP INC.
7
<PAGE> 8
By:__________________________________
Title:
8
<PAGE> 9
Agent
CITIBANK, N.A.
as Term Loan Agent
By:_______________________________
Title: Vice-President
CITIBANK, N.A.
as Revolving Credit Agent
By:_______________________________
Title: Vice-President
Lenders
CITIBANK, N.A., as Term Loan Lender
By:________________________________
Title: Vice-President
CITICORP USA, INC., as Revolving
Credit Lender
By:________________________________
Title: Vice-President
HELLER FINANCIAL, INC., as Term
Loan Lender and Revolving Credit
Lender
By:________________________________
Title:
9
<PAGE> 10
SANWA BUSINESS CREDIT CORPORATION,
as Revolving Credit Lender
By:_______________________________
Title:
10
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated September 26, 1995
included in Waxman Industries, Inc.'s Form 10-K for the year ended June 30,
1995 and to all references to our Firm included in this Registration Statement
(File No. 33-54211).
Cleveland, Ohio,
October 9, 1995.
