As filed with the Securities and Exchange Commission on June 11,
1998
Registration No. 333-_______
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
U.S. INDUSTRIES, INC.
(Formerly named USI, Inc.)
(Exact name of registrant as specified in its charter)
Delaware 22-3568449
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
101 Wood Avenue South
P.O. Box 169
Iselin, New Jersey 08830-0169
(732) 767-0700
(Address of principal executive offices) (Zip code)
Amended U.S. Industries, Inc. Stock Option Plan
U.S. Industries, Inc. Restricted Stock Plan
(formerly, the U.S. Industries, Inc. 1997 Restricted Stock Plan)
U.S. Industries, Inc. 1996 Employee Stock Plan
(formerly, the Zurn Industries, Inc. 1996 Employee Stock Plan)
(Full title of the plans)
George H. MacLean, Esq.
Senior Vice President, General Counsel and Secretary
101 Wood Avenue South, P.O. Box 169
Iselin, New Jersey 08830-0169
(732) 767-0700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
=================================================================
Title of Amount to Proposed Proposed Amount of
securities be maximum maximum registra-
to be registered offering aggregate tion
registered price offering fee
per price
share(1)
- -----------------------------------------------------------------
Common Stock, 2,142,505 $26.74 $57,290,583.70 $16,900.72
par value shares
$0.01 per
share
=================================================================
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) and (c). Pursuant to
Rule 416 promulgated under the Securities Act of 1933, as
amended, this Registration Statement also registers such
additional indeterminate number of shares as may be required to
cover possible adjustments under the U.S. Industries, Inc.
Restricted Stock Plan, the Amended U.S. Industries, Inc. Stock
Option Plan and the U.S. Industries, Inc. 1996 Employee Stock
Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents previously filed by U.S. Industries,
Inc., a Delaware corporation formerly named USI, Inc. (the
"Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended
(the "Securities Act") or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") are incorporated herein by
reference:
(1) the description of the Common Stock of the Company
contained in the Company's Current Report on Form 8-K as
filed with the Commission pursuant to the Exchange Act on
June 10, 1998, including any amendment or report filed for
the purpose of updating such description; and
(2) the Joint Proxy Statement/Prospectus dated May 13,
1998 (except with regard to the Opinions and Consents of
Weil, Gotshal & Manges LLP and Jones, Day, Reavis & Pogue
and the Consents of BT Wolfensohn and Credit Suisse First
Boston including any references thereto) included in the
Registration Statement on Form S-4 of the Company, as
amended (No. 333-47101).
The following documents previously filed by U.S. Industries,
Inc., a Delaware corporation ("USI") with the Commission pursuant
to the Exchange Act are incorporated herein by reference:
(1) the USI Annual Report on Form 10-K for the fiscal
year ended September 30, 1997, as amended by a Form 10-K/A
(Amendment No. 1) dated May 11, 1998;
(2) the USI Quarterly Reports on Form 10-Q for the
quarters ended December 31, 1997, as amended by a Form
10-Q/A (Amendment No. 1) dated May 11, 1998 and March 31,
1998; and
(3) the USI Current Reports on form 8-K dated December
18, 1997, February 18, 1998 and May 19, 1998.
The following documents previously filed by Zurn Industries,
Inc., a Pennsylvania corporation ("Zurn") with the Commission
pursuant to the Exchange Act are incorporated herein by
reference:
(1) the Zurn Annual Report on Form 10-K for the year
ended March 31, 1997;
(2) the Zurn Quarterly Reports on Form 10-Q for the
quarters ended June 30, 1997, September 30, 1997 and
December 31, 1997; and
(3) the Zurn Current Reports on Form 8-K/A dated April
7, 1997 and on Form 8-K dated January 30, 1998 and
February 16, 1998.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be part thereof from the
date of filing such document.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for the purposes of this Registration Statement to
the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
------ -------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
------ -------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------ -----------------------------------------
The Company is incorporated in Delaware. Under Section 145
of the General Corporation Law of the State of Delaware, a
Delaware corporation has the power, under specified
circumstances, to indemnify its directors, officers, employees
and agents in connection with actions, suits or proceedings
brought against them by a third party or in the right of the
corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against expenses
incurred in any action, suit or proceeding. Article XIV of the
Company's By-Laws provides for indemnification of directors and
officers to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as amended from time to
time.
Section 102(b)(7) of the General Corporation Law of the
State of Delaware provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director
provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
(relating to liability for unauthorized acquisitions or
redemptions of, or dividends on, capital stock) of the General
Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal
benefit. Article VII of the Company's Certificate of
Incorporation contains such a provision and further provides that
if Delaware law is amended thereafter to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Company shall
be eliminated or limited to the fullest extent permitted by the
Delaware law, as so amended.
The Company's By-Laws authorize the Company to purchase
insurance for directors, officers and employees of the Company,
and persons who serve at the request of the Company as directors,
officers, members, employees, fiduciaries or agents of other
enterprises against any liability asserted against such person
and incurred by such person in any such capacity, or arising out
of such person's status as such, whether or not the Company would
have the power or the obligation to indemnify such persons
against such liability under the By-Laws. The Company intends to
maintain insurance coverage for its directors and officers under
a directors and officer's liability insurance policy as well as
coverage to reimburse the Company for potential costs of its
indemnification of directors and officers.
Item 7. Exemption from Registration Claimed.
------ -----------------------------------
Not applicable.
Item 8. Exhibits.
------
4.1 Amended and Restated Certificate of Incorporation of
the Company.
4.2 Amended and Restated By-laws of the Company.
5.1 Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Price Waterhouse LLP.
23.4 Consent of Arthur Andersen LLP.
23.5 Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1).
24.1 Power of Attorney.
Item 9. 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; (ii) to
reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "calculation of
registration fee" table in the effective registration
statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on
Form S-3, Form S-8 or Form F-3, and the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the egistration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, 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 the 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
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Exchange Act 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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities 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 Securities Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Iselin, State of New Jersey, on June 11, 1998.
U.S. INDUSTRIES, INC.
By:/s/ George H. MacLean
------------------------------
George H. MacLean
Senior Vice President
General Counsel and Secretary
<PAGE>
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
David H. Clarke* Chairman of the Board, Chief June 11, 1998
- --------------- Executive Officer and Director
David H. Clarke (Principal Executive Officer)
John G. Raos* President, Chief Operating June 11, 1998
- ---------------- Officer and Director
John G. Raos
Frank R. Reilly* Senior Vice President, June 11, 1998
- ----------------- Chief Financial Officer and
Frank R. Reilly Director
(Principal Financial Officer)
James O'Leary * Vice President-Corporate June 11, 1998
- ----------------- Controller
James O'Leary (Principal Accounting Officer)
Brian C. Beazer* Director June 11, 1998
- -----------------
Brian C. Beazer
Mark Vorder Breugge*Director June 11, 1998
- -----------------
Mark Vorder Breugge
William E. Butler* Director June 11, 1998
- ------------------
William E. Butler
John J. McAtee, Jr.*Director June 11, 1998
- -------------------
John J. McAtee, Jr.
The Hon. Charles H. Price II* Director June 11, 1998
- ----------------------------
The Hon. Charles H. Price II
Sir Harry Solomon*
- ------------------- Director June 11, 1998
Sir Harry Solomon
Royall Victor III* Director June 11, 1998
- ------------------
Royall Victor III
Robert R. Womack* Director June 11, 1998
- ------------------
Robert R. Womack
* By George H. MacLean
Attorney-in-fact
/s/ George H. MacLean
- ------------------
George H. MacLean
Exhibit Index
Exhibit No. Document
- ---------- ---------
4.1 Amended and Restated Certificate of Incorporation of
the Company.
4.2 Amended and Restated By Laws of the Company.
5.1 Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Price Waterhouse LLP.
23.4 Consent of Arthur Andersen LLP.
23.5 Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1).
24.1 Power of Attorney.
Exhibit 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
U.S. INDUSTRIES, INC.
This document constitutes an amendment and restatement of
the original Certificate of Incorporation of USI, Inc. (the
"Corporation") which was filed with the Secretary of State of
Delaware on February 4, 1998. This Amended and Restated
Certificate of Incorporation was duly adopted in accordance with
the provisions of Sections 245(c) and 242 of the Delaware General
Corporation Law
ARTICLE I
NAME
The name of the Corporation is U.S. Industries, Inc
ARTICLE II
ADDRESS OF REGISTERED OFFICE;
NAME OF REGISTERED AGENT
The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the City of Wilmington, County of New Castle, 19801.
The name of its registered agent at that address in the State of
Delaware is The Corporation Trust Company.
ARTICLE III
PURPOSE AND POWERS
The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may now or hereafter be
organized under the Delaware General Corporation Law ("Delaware
Law"). It shall have all powers that may now or hereafter be
lawful for a corporation to exercise under the Delaware Law.
ARTICLE IV
CAPITAL STOCK
SECTION 4.1 Total Number of Shares of Stock. The total
number of shares of capital stock of all classes that the
Corporation shall have authority to issue is 350,000,000 shares.
The authorized capital stock is divided into 50,000,000 shares of
preferred stock, of the par value of $.01 each (the "Preferred
Stock"), and 300,000,000 shares of common stock, of the par value
of $.01 each (the "Common Stock").
SECTION 4.2 Preferred Stock. (a) The shares of Preferred
Stock of the Corporation may be issued from time to time in one
or more classes or series thereof, the shares of each class or
series thereof to have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are
stated and expressed herein or in the resolution or resolutions
providing for the issue of such class or series, adopted by the
board of directors of the Corporation (the "Board of Directors")
as hereinafter provided.
(b) Authority is hereby expressly granted to the Board of
Directors, subject to the provisions of this Article IV and to
the limitations prescribed by the Delaware Law, to authorize the
issue of one or more classes, or series thereof, of Preferred
Stock and with respect to each such class or series to fix by
resolution or resolutions providing for the issue of such class
or series the voting powers, full or limited, if any, of the
shares of such class or series and the designations, preferences
and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof. The
authority of the Board of Directors with respect to each class or
series thereof shall include, but not be limited to, the
determination or fixing of the following:
(i) the maximum number of shares to constitute such
class or series, which may subsequently be increased or
decreased by resolutions of the Board of Directors unless
otherwise provided in the resolution providing for the issue
of such class or series, the distinctive designation thereof
and the stated value thereof if different than the par value
thereof;
(ii) the dividend rate of such class or series, the
conditions and dates upon which such dividends shall be
payable, the relation which such dividends shall bear
to the dividends payable on any other class or classes of
stock or any other series of any class of stock of the
Corporation, and whether such dividends shall be cumulative
or noncumulative;
(iii) whether the shares of such class or series shall
be subject to redemption, in whole or in part, and if made
subject to such redemption the times, prices and other terms
and conditions of such redemption, including whether or not
such redemption may occur at the option of the Corporation
or at the option of the holder or holders thereof or upon
the happening of a specified event;
(iv) the terms and amount of any sinking fund
established for the purchase or redemption of the shares of
such class or series;
(v) whether or not the shares of such class or series
shall be convertible into or exchangeable for shares of any
other class or classes of any stock or any other series of
any class of stock of the Corporation, and, if provision is
made for conversion or exchange, the times, prices, rates,
adjustments, and other terms and conditions of such
conversion or exchange;
(vi) the extent, if any, to which the holders of shares
of such class or series shall be entitled to vote with
respect to the election of directors or otherwise;
(vii) the restrictions, if any, on the issue or reissue
of any additional Preferred Stock;
(viii) the rights of the holders of the shares of such
class or series upon the dissolution of, or upon the
subsequent distribution of assets of, the Corporation; and
(ix) the manner in which any facts ascertainable
outside the resolution or resolutions providing for the
issue of such class or series shall operate upon the
voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such class or
series.
Section 4.3 Common Stock. The shares of Common Stock of
the Corporation shall be of one and the same class. The holders
of Common Stock shall have one vote per share of Common Stock on
all matters on which holders of Common Stock are entitled to
vote.
ARTICLE V.
BOARD OF DIRECTORS
Section 5.1 Powers of Board of Directors. The business and
affairs of the Corporation shall be managed by or under the
direction of its Board of Directors which shall consist of not
less than three members. In furtherance, and not in limitation,
of the powers conferred by the laws of the State of Delaware, the
Board of Directors is expressly authorized to:
(a) adopt, amend, alter, change or repeal the By-Laws
of the Corporation; provided, however, that no By-Laws
hereafter adopted shall invalidate any prior act of the
directors that would have been valid if such new By-Laws had
not been adopted;
(b) determine the rights, powers, duties, rules and
procedures that affect the power of the Board of Directors
to manage and direct the business and affairs of the
Corporation, including the power to designate and empower
committees of the Board of Directors, to elect, appoint and
empower the officers and other agents of the Corporation,
and to determine the time and place of, the notice
requirements for, Board meetings, as well as quorum and
voting requirements for, and the manner of taking, Board
action; and
(c) exercise all such powers and do all such acts as
may be exercised or done by the Corporation, subject to the
provisions of the Delaware Law, this Certificate of
Incorporation, and the By-Laws of the Corporation.
Section 5.2 Number of Directors. The number of directors
constituting the Board of Directors shall be determined from time
to time exclusively by a vote of a majority of the Board of
Directors in office at the time of such vote.
Section 5.3 Classified Board of Directors. The directors
shall be divided into three classes, which each class to be as
nearly equal in number as reasonably possible, and with the
initial term of office of the first class of directors to expire
at the 1999 annual meeting of stockholders, the initial term of
office of the second class of directors to expire at the 2000
annual meeting of stockholders and the initial term of office of
the third class of directors to expire at the 2001 annual meeting
of stockholders, in each case upon the election and qualification
of their successors. Commencing with the 1999 annual meeting of
stockholders, directors elected to succeed those directors whose
terms have thereupon expired shall be elected to a term of office
to expire at the third succeeding annual meeting of stockholders
after their election, and upon the election and qualification of
their successors. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as
to maintain or attain the number of directors in each class as
nearly equal as reasonably possible, but in no case will a
decrease in the number of directors shorten the term of any
incumbent director.
Section 5.4 Vacancies. Any vacancies in the Board of
Directors for any reason and any newly created directorship
resulting by reason of any increase in the number of directors
may be filled only by the Board of Directors, acting by a
majority of the remaining directors then in office, although less
than a quorum, or by a sole remaining director, and any directors
so appointed shall hold office until the next election of the
class of which such directors have been chosen and until their
successors are elected and qualified.
Section 5.5 Removal of Directors. Except as may be
provided in a resolution or resolutions providing for any class
or series of Preferred Stock pursuant to Article IV hereof with
respect to any directors elected by the holders of such class or
series, any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause, and only by
the affirmative vote of the holders of at least 66-2/3% of the
voting power of all of the shares of capital stock of the
Corporation then entitled to vote generally in the election of
directors, voting together as a single class.
ARTICLE VI
STOCKHOLDER ACTIONS AND MEETINGS OF STOCKHOLDERS
Except as may be provided in a resolution or resolutions
providing for any class or series of Preferred Stock pursuant to
Article IV hereof, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of such holders and may not be
effected by any written consent in lieu of a meeting by such
holders. Special meetings of stockholders of the Corporation may
be called only by the Board of Directors pursuant to a resolution
adopted by a majority of the members of the Board of Directors
then in office. Elections of directors need not be by written
ballot, unless otherwise provided in the By-Laws. For purposes of
all meetings of stockholders, a quorum shall consist of a
majority of the shares entitled to vote at such meeting of
stockholders, unless otherwise required by law.
ARTICLE VII
LIMITATION ON LIABILITY OF DIRECTORS
No person shall be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary
duty as a director, including without limitation directors
serving on committees of the Board of Directors; provided,
however, that the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty
of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware
Law is amended hereafter to authorize corporate action further
eliminating or limited the personal liability of directors, then
the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the
Delaware Law, as so amended. Any amendment, repeal or
modification of this Article VII shall not adversely affect any
right or protection of a director of the Corporation existing
hereunder with respect to any act or omission occurring prior to
such amendment, repeal or modification.
ARTICLE VIII
AMENDMENT OF BY-LAWS
The Board of Directors shall have the power to adopt, amend,
alter, change or repeal any By-Laws of the Corporation. In
addition, the stockholders of the Corporation may adopt, amend,
alter, change or repeal any By-Laws of the Corporation by the
affirmative vote of the holders of at least 66-2/3% of the voting
power of all of the shares of capital stock of the Corporation
then entitled to vote generally in the election of directors,
voting together as a single class (notwithstanding the fact that
a lesser percentage may be specified by Delaware Law).
ARTICLE IX
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation hereby reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation in any manner permitted by Delaware Law and all
rights and powers conferred upon stockholders, directors, and
officers herein are granted subject to this reservation. Except
as may be provided in a resolution or resolutions providing for
any class or series of Preferred Stock pursuant to Article IV
hereof and which relate to such class or series of Preferred
Stock, any such amendment, alteration, change or repeal shall
require the affirmative vote of both (a) a majority of the
members of the Board of Directors then in office and (b) a
majority of the voting power of all of the shares of capital
stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class; except
that any proposal to amend, alter, change or repeal the
provisions of Articles 5.3, Article 5.5, Article VI, Article VIII
and this Article IX shall require the affirmative vote of 66-2/3%
of the voting power of all of the shares of capital stock
entitled to vote generally in the election of directors, voting
together as a single class.
ARTICLE X
SEVERABILITY
In the event that any of the provisions of this Certificate
of Incorporation (including any provision within a single
Section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the
remaining provisions are severable and shall remain enforceable
to the full extent permitted by law.
* * * *
Exhibit 4.2
AMENDED AND RESTATED
BY-LAWS
OF
U.S. INDUSTRIES, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. (a) All annual meetings of the
Stockholders for the election of directors shall be held at such
place as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Special
meetings of Stockholders for any other purpose may be held at
such time and place as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
(b) Annual meetings of Stockholders shall be held on such
date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting,
at which they shall elect by a plurality vote a Board of
Directors or, during such time as the certificate of
incorporation of the Corporation (the "Certificate of
Incorporation") provides for a classified Board of Directors,
that class of directors the term of which shall expire at the
meeting, and transact such other business as may properly be
brought before the meeting.
(c) Written notice of the annual meeting stating the place,
date, and hour of the meeting shall be given to each Stockholder
entitled to vote at such meeting not less than ten days nor more
than sixty days prior to the date of the meeting. A written
waiver of any such notice signed by the person entitled thereto,
whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the
person attends the meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
(d) The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before
every meeting of Stockholders, a complete list of the
Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder
and the number of shares registered in the name of each
Stockholder. Such list shall be open to the examination of any
Stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any Stockholder who is
present. The stock ledger shall be the only evidence as to the
Stockholders entitled to examine the stock ledger, the list
required by this section or the books of the Corporation, or to
vote in person or by proxy at any meeting of Stockholders.
SECTION 2. Special Meetings. (a) Special meetings of the
Stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the certificate of incorporation of
the Corporation, shall be called by the Chairman, President or
Secretary only at the request in writing of a majority of the
Board of Directors then in office. Such request shall state the
purpose or purposes of the proposed meeting.
(b) Written notice of a special meeting stating the place,
date, and hour of the meeting and, in general terms, the purpose
or purposes for which the meeting is called, shall be given not
less than ten days nor more than sixty days prior to the date of
the meeting, to each Stockholder entitled to vote at such
meeting. Special meetings may be held at such place as shall be
designated by the Board of Directors. Whenever the directors
shall fail to fix such place, the meeting shall be held at the
principal executive offices of the Corporation.
(c) Business transacted at any special meeting of
Stockholders, other than procedural matters and matters relating
to the conduct of the meeting, shall be limited to the purpose or
purposes stated in the notice.
SECTION 3. Quorums. (a) The holders of a majority of the
stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a
quorum at all meetings of the Stockholders for the transaction of
business except as otherwise provided by the Delaware General
Corporation Law ("Delaware Law") or by the Certificate of
Incorporation. Unless these By-Laws otherwise require, when a
meeting is adjourned to another time or place, whether or not a
quorum is present, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment
is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each Stockholder of record
entitled to vote at the meeting. When a quorum is once present it
is not broken by the subsequent withdrawal of any Stockholder.
(b) When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one
on which, by express provision of Delaware Law or of the
Certificate of Incorporation, a different vote is required, in
which case such express provision shall govern and control the
decision of such question.
SECTION 4. Organization. Meetings of Stockholders shall
be presided over by the Chairman, if any, or if none or in the
Chairman's absence, the President, if any, or if none or in the
President's absence, by a Chairman to be chosen by the
Stockholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the Corporation, or in the
Secretary's absence an Assistant Secretary, shall act as
Secretary of every meeting and keep the minutes thereof, but if
neither the Secretary nor an Assistant Secretary is present, the
presiding officer of the meeting shall appoint any person present
to act as secretary of the meeting. The order of business at all
meetings of stockholders shall be as determined by the Chairman
of the meeting.
SECTION 5. Voting; Proxies; Required Vote. (a) At each
meeting of Stockholders, every Stockholder shall be entitled to
vote in person or by proxy appointed by an instrument in writing,
subscribed by such Stockholder or by such Stockholder's duly
authorized attorney-in-fact (but no such proxy shall be voted or
acted upon after three years from its date, unless the proxy
provides for a longer period) and, unless Delaware Law or the
Certificate of Incorporation (including resolutions designating
any class or series of preferred stock pursuant to Article IV of
the Certificate of Incorporation) provides otherwise, shall have
one vote for each share of stock entitled to vote registered in
the name of such Stockholder on the books of the Corporation on
the applicable record date fixed pursuant to these By-Laws. At
all elections of directors the voting may but need not be by
ballot and a plurality of the votes cast there shall elect
directors. Except as otherwise required by law or the Certificate
of Incorporation, any other action shall be authorized by a
majority of the votes cast.
(b) Where a separate vote by a class or classes, a majority
of the outstanding shares of such class or classes, present in
person or represented by proxy, shall constitute a quorum
entitled to vote on that matter, the affirmative vote of the
majority of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such
class, unless otherwise provided in the Certificate of
Incorporation.
SECTION 6. Inspector of Election. The Board of Directors,
in advance of any meeting, may, but need not, appoint one or more
inspectors of election to act at the meeting or any adjournment
thereof. If an inspector or inspectors are not so appointed, the
person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an
inspector fails to appear or act, the vacancy may be filled by
appointment made by the directors in advance of the meeting or at
the meeting by the person presiding thereat. Each inspector, if
any, before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors, if any, shall
determine the number of shares of stock outstanding and the
voting power of each, the shares of stock represented at the
meeting, the existence of a quorum, and the validity and effect
of proxies, and shall receive votes, ballots or consents, hear
and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all Stockholders.
On request of the person presiding at the meeting, the inspector
or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by such inspector or
inspectors and execute a certificate of any fact found by such
inspector or inspectors.
SECTION 7. Stockholder Proposals and Nominations. (a) No
proposal for a stockholder vote shall be submitted by a
stockholder (a "Stockholder Proposal") to the Corporation's
stockholders unless the stockholder submitting such proposal (the
"Proponent") shall have filed a written notice setting forth with
particularity (i) the names and business addresses of the
Proponent and all persons or entities (collectively, the
"Persons") acting in concert with the Proponent; (ii) the name
and address of the Proponent and the Persons identified in clause
(i), as they appear on the Corporation's books (if they so
appear); (iii) the class and number of shares of the Corporation
beneficially owned by the Proponent and the Persons identified in
clause (i); (iv) a description of the Stockholder Proposal
containing all material information relating thereto; and (v)
such other information as the Board of Directors reasonably
determines is necessary or appropriate to enable the Board of
Directors and stockholders of the Corporation to consider the
Stockholder Proposal. The presiding officer at any stockholders'
meeting may determine that any Stockholder Proposal was not made
in accordance with the procedures prescribed in these By-Laws or
is otherwise not in accordance with law, and if it is so
determined, such officer shall so declare at the meeting and the
Stockholder Proposal shall be disregarded.
(b) Only persons who are selected and recommended by the
Board of Directors or the committee of the Board of Directors
designated to make nominations (if any), or who are nominated by
stockholders in accordance with the procedures set forth in this
Section 7, shall be eligible for election, or qualified to serve,
as directors. Nominations of individuals for election to the
Board of Directors of the Corporation at any annual meeting or
any special meeting of stockholders at which directors are to be
elected may be made by any stockholder of the Corporation
entitled to vote for the election of directors at that meeting by
compliance with the procedures set forth in this Section 7.
Nominations by stockholders shall be made by written notice (a
"Nomination Notice"), which shall set forth (i) as to each
individual nominated, (A) the name, date of birth, business
address and residence address of such individual; (B) the
business experience during the past five years of such nominee,
including his or her principal occupations and employment during
such period, the name and principal business of any corporation
or other organization in which such occupations and employment
were carried on, and such other information as to the nature of
his or her responsibilities and level of professional competence
as may be sufficient to permit assessment of his or her prior
business experience; (C) whether the nominee is or has ever been
at any time a director, officer or owner of 5% or more of any
class of capital stock, partnership interests or other equity
interest of any corporation, partnership or other entity; (D) any
directorships held by such nominee in any company with a class of
securities registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, or subject to the requirements
of Section 15(d) of such Act or any company registered as an
investment company under the Investment Company Act of 1940, as
amended; and (E) whether, in the last five years, such nominee
has been convicted in a criminal proceeding or has been subject
to a judgment, order, finding or decree of any federal, state or
other governmental entity, concerning any violation of federal,
state or other law, or any proceeding in bankruptcy, which
conviction, order, finding, decree or proceeding may be material
to an evaluation of the ability or integrity of the nominee; and
(ii) as to the Person submitting the Nomination Notice and any
Person acting in concert with such Person, (x) the name and
business address of such Person, (y) the name and address of such
Person as they appear on the Corporation's books (if they so
appear), and (z) the class and number of shares of the
Corporation that are beneficially owned by such Person. A written
consent to being named in a proxy statement as a nominee, and to
serve as a director if elected, signed by the nominee, shall be
filed with any Nomination Notice. If the presiding officer at any
stockholders' meeting determines that a nomination was not made
in accordance with the procedures prescribed by these By- Laws,
he shall so declare to the meeting and the defective nomination
shall be disregarded.
(c) Stockholder Proposals and Nomination Notices shall be
delivered to the Secretary at the principal executive office of
the Corporation 60 days or more before the date of the
stockholders' meeting if such Stockholder Proposal or Nomination
Notice is to be submitted at an annual stockholders' meeting.
Stockholder Proposals and Nomination Notices shall be delivered
to the Secretary at the principal executive office of the
Corporation no later than the close of business on the 15th day
following the day on which notice of the date of a special
meeting of stockholders was given if the Stockholder Proposal or
Nomination Notice is to be submitted at a special stockholders'
meeting.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and
affairs of the Corporation shall be managed by, or under the
direction of, the Board of Directors. The Board of Directors
shall exercise exclusive strategic control of the Corporation and
shall not delegate its policy-making powers.
SECTION 2. Qualification; Number; Term; Remuneration.
(a) Each director shall be at least 18 years of age. A director
need not be a Stockholder, a citizen of the United States, or a
resident of the State of Delaware. The number of directors
constituting the entire Board shall be such number as may be
fixed from time to time by the Board of Directors, but shall be
not less than three. One of the directors may be selected by the
Board of Directors to be its Chairman, who shall preside at
meetings of the Stockholders and the Board of Directors and shall
have such other duties, if any, as may from time to time be
assigned by the Board of Directors. In the absence of formal
selection, the President of the Corporation shall serve as
Chairman. The use of the phrase "entire Board" herein refers to
the total number of directors which the Corporation would have if
there were no vacancies.
(b) Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. Members of special
or standing Committees may be allowed like compensation for
attending Committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as
otherwise provided by law, a majority of the entire Board of
Directors shall constitute a quorum. A majority of the directors
present, whether or not a quorum is present, may adjourn a
meeting from time to time to another time and place without
notice. The vote of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the
Board of Directors. When a meeting is adjourned to another time
or place, whether or not a quorum is present, notice need not be
given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Board of Directors may transact any
business which might have been transacted at the original
meeting. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the
meeting, from time to time, without notice other than
announcement at the meeting, until a quorum is present.
SECTION 4. Annual Meeting. At the next regular meeting
following the annual meeting of Stockholders, the newly elected
Board of Directors shall meet for the purpose of the election of
officers and the transaction of such other business as may
properly come before the meeting.
SECTION 5. Regular Meetings. Regular meetings of the Board
of Directors shall be held at such times as the Board of
Directors shall from time to time by resolution determine. After
the place and time of regular meetings of the Board of Directors
shall have been determined and notice thereof shall have been
once given to each member of the Board of Directors, regular
meetings may be held without further notice being given.
SECTION 6. Special Meetings. Notice of the date, time and
place of each special meeting shall be mailed by regular mail to
each director at his designated address at least six days before
the meeting; or sent by overnight courier to each director at his
designated address at least two days before the meeting (with
delivery scheduled to occur no later than the day before the
meeting); or given orally by telephone or other means, or by
telegraph or telecopy, or by any other means comparable to any of
the foregoing, to each director at his designated address at
least 24 hours before the meeting; provided, however, that if
less than five days' notice is provided and one third of the
members of the Board of Directors then in office object in
writing prior to or at the commencement of the meeting, such
meeting shall be postponed until five days after such notice was
given pursuant to this sentence (or such short period to which a
majority of those who objected in writing agree), provided that
notice of such postponed meeting shall be given in accordance
with this Section 7. The notice of the special meeting shall
state the general purpose of the meeting, but other routine
business may be conducted at the special meeting without such
matter being stated in the notice.
SECTION 7. Organization. At all meetings of the Board of
Directors, the Chairman or in the Chairman's absence or inability
to act, the President, or in the President's absence, a Chairman
chosen by the directors, shall preside. The Secretary of the
Corporation shall act as secretary at all meetings of the Board
of Directors when present, and, in the Secretary's absence, the
presiding officer may appoint any person to act as Secretary.
SECTION 8. Resignation. Any director may resign at any
time upon written notice to the Corporation and such resignation
shall take effect upon receipt thereof by the Chairman or
Secretary, unless otherwise specified in the resignation.
Directors may be removed only in the manner provided in the
Certificate of Incorporation.
SECTION 9. Vacancies. Unless otherwise provided in these
By-Laws, vacancies on the Board of Directors, whether caused by
resignation, death, disqualification, removal, an increase in the
authorized number of directors or otherwise, may be filled by the
affirmative vote of a majority of the remaining directors,
although less than a quorum, or by a sole remaining director.
SECTION 10. Preferred Directors. Notwithstanding anything
else contained herein, whenever the holders of one or more
classes or series of Preferred Stock shall have the right, voting
separately as a class or series, to elect directors, the
election, term of office, filling of vacancies, removal and other
features of such directorships shall be governed by the terms of
the resolutions applicable thereto adopted by the Board of
Directors pursuant to the Certificate of Incorporation, and such
directors so elected shall not be subject to the provisions of
this Article II unless otherwise provided herein.
ARTICLE III
Committees
SECTION 1. Appointment; Powers. The Board of Directors
may, by resolution passed by a majority of the whole board,
designate one or more Committees, each Committee to consist of
one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate
members of any Committee, who may replace any absent or
disqualified member at any meeting of the Committee. In the
absence or disqualification of a member of a Committee, the
member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent
or disqualified member. Any such Committee, to the extent
provided in the resolution, shall, subject to the provisions of
Article II, Section 1 of these By-Laws, have and may exercise the
powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may
require it; but no such Committee shall have the power or
authority to: (i) approve or adopt, or recommend to the
stockholders, any action or matter required to be submitted to
the stockholders for approval or (ii) adopt, amend or repeal any
By-Law. Such Committee or Committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board of Directors.
SECTION 2. Procedures, Quorum and Manner of Acting. Each
Committee shall fix its own rules of procedure, and shall meet
where and as provided by such rules or by resolution of the Board
of Directors, subject to the provisions of Sections 3 and 4 of
Article II. Except as otherwise provided by law, the presence of
a majority of the then appointed members of a Committee shall
constitute a quorum for the transaction of business by that
Committee, and in every case where a quorum is present the
affirmative vote of a majority of the members of the Committee
present shall be the act of the Committee. Each Committee shall
keep minutes of its proceedings, and actions taken by a Committee
shall be reported to the Board of Directors.
SECTION 3. Termination. In the event any person shall
cease to be a director of the Corporation, such person shall
simultaneously therewith cease to be a member of any Committee
appointed by the Board of Directors.
ARTICLE IV
Officers
SECTION 1. Election and Qualifications. The Board of
Directors at its first meeting held after each annual meeting of
Stockholders shall elect the officers of the Corporation, which
shall include a President and a Secretary, and may include, by
election or appointment, a Chairman of the Board, one or more
Vice- Presidents (any one or more of whom may be given an
additional designation of rank or function), a Treasurer and such
Assistant Secretaries, such Assistant Treasurers and such other
officers as the Board of Directors may from time to time deem
proper. Each officer shall have such powers and duties as may be
prescribed by these By-Laws and as may be assigned by the Board
of Directors or the President. Any two or more offices may be
held by the same person.
SECTION 2. Term of Office and Remuneration. The term of
office of all officers shall be until their respective successors
have been elected and qualified or their earlier death,
resignation or removal. The remuneration of all officers of the
Corporation may be fixed by the Board of Directors or in such
manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at
any time upon written notice to the Corporation and such
resignation shall take effect upon receipt thereof by the
President or Secretary, unless otherwise specified in the
resignation. Any officer shall be subject to removal, with or
without cause, at any time by the Board of Directors. Any vacancy
in any office shall be filled in such manner as the Board of
Directors shall determine.
SECTION 4. Powers and Duties of Officers.
(a) The Chairman of the Board of Directors, if there be one,
shall preside at all meetings of the Board of Directors and shall
have such other powers and duties as may from time to time be
assigned by the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall be the chief executive officer
of the Corporation and shall preside at all meetings of the
Stockholders and the Board of Directors and shall have general
management of and supervisory authority over the property,
business and affairs of the Corporation and its other officers.
The Chairman of the Board may execute and deliver in the name of
the Corporation powers of attorney, contracts, bonds and other
obligations and instruments, and shall have such other authority
and perform such other duties as from time to time may be
assigned by the Board of Directors. The Chairman of the Board
shall see that all orders and resolutions of the Board of
Directors are carried into effect and shall perform such
additional duties that usually pertain to the office of chief
executive officer.
(b) If there be no Chairman of the Board, the President
shall be the chief executive officer and shall exercise the
powers listed in (a) above. Otherwise, the President may execute
and deliver in the name of the Corporation powers of attorney,
contracts, bonds and other obligations and instruments, and shall
have such other authority and perform such other duties as from
time to time may be assigned by the Board of Directors or the
Chairman of the Board.
(c) A Vice President may execute and deliver in the name of
the Corporation powers of attorney, contracts, bonds and other
obligations and instruments, and shall have such other authority
and perform such other duties as from time to time may be
assigned by the Board of Directors, the Chairman of the Board or
the President.
(d) The Treasurer shall in general have all duties and
authority incident to the position of Treasurer and such other
duties and authority as may be assigned by the Board of
Directors, the Chairman of the Board or the President. The
Treasurer shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to
the credit of the Corporation in such depositories as may be
designated by or at the direction of the Board of Directors. The
Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, the Chairman of the Board or
the President, and shall render, upon request, an account of all
such transactions.
(e) The Secretary shall in general have all the duties and
authority incident to the position of Secretary and such other
duties and authority as may be assigned by the Board of
Directors, the Chairman of the Board or the President. The
Secretary shall attend all meetings of the Board of Directors and
all meetings of Stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose. The
Secretary shall give, or cause to be given, notice of all
meetings of the Stockholders and special meetings of the Board of
Directors. The Secretary shall have custody of the seal of the
Corporation and any officer of the Corporation shall have
authority to affix the same to any instrument requiring it and
when so affixed, it may be attested by the signature of the
Secretary or any other officer.
(f) Any assistant officer shall have such duties and
authority as the officer such assistant officer assists and, in
addition, such other duties and authority as the Board of
Directors, the Chairman of the Board or President shall from time
to time assign.
ARTICLE V
Contracts, Etc.
SECTION 1. Contracts. The Board of Directors may authorize
any person or persons, in the name and on behalf of the
Corporation, to enter into or execute and deliver any and all
deeds, bonds, mortgages, contracts and other obligations or
instruments, and such authority may be general or confined to
specific instances.
SECTION 2. Proxies; Powers of Attorney; Other Instruments.
(a) The Chairman, the President, any Vice President, the
Treasurer or any other person designated by any of them shall
have the power and authority to execute and deliver proxies,
powers of attorney and other instruments on behalf of the
Corporation in connection with the execution of contracts, the
purchase of real or personal property, the rights and powers
incident to the ownership of stock by the Corporation and such
other situations as the Chairman, the President, such Vice
President or the Treasurer shall approve, such approval to be
conclusively evidenced by the execution of such proxy, power of
attorney or other instrument on behalf of the Corporation.
(b) The Chairman, the President, any Vice President, the
Treasurer or any other person authorized by proxy or power of
attorney executed and delivered by any of them on behalf of the
Corporation may attend and vote at any meeting of stockholders of
any company in which the Corporation may hold stock, and may
exercise on behalf of the Corporation any and all of the rights
and powers incident to the ownership of such stock at any such
meeting, or otherwise as specified in the proxy or power of
attorney so authorizing any such person. The Board of Directors,
from time to time, may confer like powers upon any other person.
ARTICLE VI
Books and Records
SECTION 1. Location. The books and records of the
Corporation may be kept at such place or places as the Board of
Directors or the respective officers in charge thereof may from
time to time determine. The record books containing the names and
addresses of all Stockholders, the number and class of shares of
stock held by each and the dates when they respectively became
the owners of record thereof shall be kept by the Secretary as
prescribed in the By-Laws or by such officer or agent as shall be
designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings
and all other corporate notices may be delivered personally or
mailed to each Stockholder at the Stockholder's address as it
appears on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of
Record. (a) In order that the Corporation may determine the
Stockholders entitled to notice of or to vote at any meeting of
Stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted
by the Board of Directors and which record date shall not be more
than 60 days nor less than 10 days before the date of such
meeting. If no record date is fixed by the Board of Directors,
the record date for determining Stockholders entitled to notice
of or to vote at a meeting of Stockholders shall be at the close
of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of Stockholders of record entitled to notice of or
to vote at a meeting of Stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
Stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the Stockholders
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action not contemplated by paragraph (a) of this Section
3, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted and which record date shall be not
more than 60 days prior to such action. If no record date is
fixed, the record date for determining Stockholders for any such
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
ARTICLE VII
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the
Corporation shall be represented by certificates, provided that
the Board of Directors of the Corporation may provide by
resolution or resolutions that some or all of any or all classes
or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and
upon request every holder of uncertificated shares shall be
entitled to have a certificate, signed by or in the name of the
Corporation by the Chairman or Vice-Chairman of the Board of
Directors, or the President or any Vice-President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, representing the number
of shares registered in certificate form. Any or all of the
signatures on any such certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
SECTION 2. Record Ownership. The name of the holder of
record of the shares represented thereby, with the number of such
shares and the date of issue thereof, shall be entered on the
books of the Corporation. The Corporation shall be entitled to
treat the holder of record of any share of stock as the holder in
fact thereof, and accordingly shall not be bound to recognize any
equitable or other claim to or interest in any share on the part
of any other person, whether or not it shall have express or
other notice thereof, except as required by Delaware Law. The
Board of Directors shall have power and authority to make all
such rules and regulations as it may deem expedient concerning
the issue, transfer and registration of certificates representing
shares of the Corporation.
SECTION 3. Transfer of Record Ownership. Transfer of stock
shall be made on the books of the Corporation only by direction
of the person named in the certificate or such person's attorney,
lawfully constituted in writing, and only upon the surrender of
the certificate therefor and a written assignment of the shares
evidenced thereby, which certificate shall be canceled before the
new certificate is issued.
SECTION 4. Fractional Shares. The Corporation may, but
shall not be required to, issue certificates for fractions of a
share where necessary to effect authorized transactions, or the
Corporation may pay in cash the fair value of fractions of a
share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or
bearer form over the manual or facsimile signature of an officer
of the Corporation or of its agent, exchangeable as therein
provided for full shares, but such scrip shall not entitle the
holder to any rights of a Stockholder except as therein provided.
SECTION 5. Lost, Stolen or Destroyed Certificates. The
Corporation may issue a new certificate in place of any
certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Board of Directors may require the
owner of any lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to
indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new
certificate.
SECTION 6. Transfer Agents; Registrants; Rules Respecting
Certificates. The Board of Directors may appoint, or authorize
any officer or officers to appoint, one or more transfer agents
and one or more registrars. The Board of Directors may make such
further rules and regulations as it may deem expedient concerning
the issue, transfer and registration of stock certificates of the
Corporation.
ARTICLE VIII
Dividends
Subject to the provisions of Delaware Law and the
Certificate of Incorporation, the Board of Directors shall have
full power to declare and pay dividends on the capital stock of
the Corporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends
such sum or sums as the Board of Directors from time to time, in
its absolute discretion, may determine for any proper purpose,
and the Board of Directors may modify or abolish any such
reserve.
ARTICLE IX
Ratification
Any transaction, questioned in any lawsuit on the ground of
lack of authority, defective or irregular execution, adverse
interest of director, officer or Stockholder, non-disclosure,
miscomputation, or the application of improper principles or
practices of accounting, may be ratified before or after
judgment, by the Board of Directors or by the Stockholders, and
if so ratified shall have the same force and effect as if the
questioned transaction had been originally duly authorized. Such
ratification shall be binding upon the Corporation and its
Stockholders and shall constitute a bar to any claim or execution
of any judgment in respect of such questioned transaction.
ARTICLE X
Corporate Seal
The corporate seal shall be in form of a circular
inscription which contains the words "Corporate Seal" and such
additional information as the officer inscribing such seal shall
determine in such officer's sole discretion. The corporate seal
may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise displayed or it may be
manually inscribed.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors. Unless otherwise
fixed by the Board of Directors, the fiscal year of the
Corporation shall end on the Saturday closest to September 30.
ARTICLE XII
Waiver of Notice
Whenever notice is required to be given by these By-Laws or
by the Certificate of Incorporation or by law, a written waiver
thereof, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed
equivalent to notice.
ARTICLE XIII
Amendments
By-Laws may be adopted, amended or repealed by either the
Board of Directors or the affirmative vote of the holders of at
least 662 3% of the voting power of all shares of the
Corporation's capital stock then entitled to vote generally in
the election of directors.
ARTICLE XIV
Indemnification
SECTION 1. Right to Indemnification. Each person who was
or is made a party or is threatened to be made a party to or is
otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of
the fact (a) that he or she is or was a director or officer of
the Corporation, or (b) that he or she, being at the time a
director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, member,
employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan (collectively,
"another enterprise" or "other enterprise"), shall be indemnified
and held harmless by the Corporation to the fullest extent
permitted by Delaware Law as the same exists or may hereafter be
amended (but, in the case of any such amendment, with respect to
alleged action or inaction occurring prior to such amendment,
only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including,
without limitation, attorneys' and other professionals' fees and
expenses, claims, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) actually and reasonably
incurred or suffered by such person in connection therewith
("Losses"). Without diminishing the scope of indemnification
provided by this Section 1, such persons shall also be entitled
to the further rights set forth below.
SECTION 2. Actions, Suits Or Proceedings Other Than Those
By Or In The Right Of The Corporation. Subject to the terms and
conditions of this Article, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any Proceeding (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or, being at the time a
director, officer or employee of the Corporation, is or was
serving at the request of the Corporation as a director, officer,
member, employee, fiduciary or agent of another enterprise,
against all Losses, actually and reasonably incurred or suffered
by such person in connection with such Proceeding if such person
acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful. The
termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that the conduct was unlawful.
SECTION 3. Actions, Suits Or Proceedings By Or In The Right
Of The Corporation. Subject to the terms and conditions of this
Article, the Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any Proceeding by
or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director
or officer of the Corporation, or being at the time a director,
officer or employee of the Corporation, is or was serving at the
request of the Corporation as a director, officer, member,
employee, fiduciary or agent of another enterprise against all
Losses actually and reasonably incurred or suffered by such
person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests
of the Corporation except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
SECTION 4. Authorization of Indemnification. Any
indemnification under this Article (unless ordered by a court)
shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of a
person is proper in the circumstances because such person has met
the applicable standard of conduct required by Section 1 or set
forth in Section 2 or 3 of this Article, as the case may be. Such
determination shall be made, with respect to a person who is a
director or officer at the time of such determination, in a
reasonably prompt manner (i) by the Board of Directors by a
majority vote of directors who were not parties to such action,
suit or proceeding, whether or not they constitute a quorum of
the Board of Directors, (ii) by a committee of such directors
designated by majority vote of such directors, even though less
than a quorum, (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written
opinion, (iv) by the stockholders or (v) as Delaware Law may
otherwise permit. To the extent, however, that a present or
former director or officer of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' and other professionals' fees) actually and
reasonably incurred by such person in connection therewith,
without the necessity of authorization in the specific case.
SECTION 5. Good Faith Defined. For purposes of any
determination under Section 4 of this Article, a person shall be
deemed to have acted in good faith if the action is based on (a)
the records or books of account of the Corporation or another
enterprise, or on information supplied to such person by the
officers of the Corporation or another enterprise in the course
of their duties or on (b) the advice of legal counsel for the
Corporation or another enterprise, or on information or records
given or reports made to the Corporation or another enterprise by
an independent certified public accountant, independent financial
adviser, appraiser or other expert selected with reasonable care
by the Corporation or the other enterprise. The provisions of
this Section 5 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct.
SECTION 6. Proceedings Initiated by Indemnified Persons.
Notwithstanding any provisions of this Article to the contrary,
the Corporation shall not indemnify any person or make advance
payments in respect of Losses to any person pursuant to this
Article in connection with any Proceeding (or portion thereof)
initiated against the Corporation by such person unless such
Proceeding (or portion thereof) is authorized by the Board of
Directors or its designee; provided, however, that this
prohibition shall not apply to a counterclaim, cross-claim or
third-party claim brought in any Proceeding or to any claims
provided for in Section 7 of this Article.
SECTION 7. Indemnification By A Court. Notwithstanding any
contrary determination in the specific case under Section 4 of
this Article, and notwithstanding the absence of any
determination thereunder, any director, officer or employee may
apply to any court of competent jurisdiction for indemnification
to the extent otherwise permissible under Section 1, 2 or 3 of
this Article. Notice of any application for indemnification
pursuant to this Section 7 shall be given to the Corporation
promptly upon the filing of such application.
SECTION 8. Losses Payable In Advance. Losses reasonably
incurred by an officer or director in defending any threatened or
pending Proceeding shall be paid by the Corporation in advance of
the final disposition of such Proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the Corporation as
authorized in this Article. Losses shall be reasonably documented
by the officer or director and required payments shall be made
promptly by the Corporation. Losses incurred by former directors
and officers or other employees and agents may be so paid upon
such terms and conditions, if any, as the Corporation deems
appropriate.
SECTION 9. Non-exclusivity and Survival of Indemnification.
The indemnification and advancement of expenses provided by or
granted pursuant to this Article shall not be deemed exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of
Incorporation, any By-Law, agreement, contract, vote of
Stockholders or of disinterested directors, or pursuant to the
direction (howsoever embodied) of any court of competent
jurisdiction or otherwise. The provisions of this Article shall
not be deemed to preclude the indemnification of any person who
is not specified in Section 1, 2 or 3 of this Article but whom
the Corporation has the power or obligation to indemnify under
the provisions of Delaware Law, or otherwise. The rights
conferred by this Article shall continue as to a person who has
ceased to be a director, officer or employee and shall inure to
the benefit of such person and the heirs, executors,
administrators and other comparable legal representatives of such
person. The rights conferred in this Article shall be enforceable
as contract rights, and shall continue to exist after any
rescission or restrictive modification hereof with respect to
events occurring prior thereto. No rights are conferred in this
Article for the benefit of any person (including, without
limitation, officers, directors and employees of subsidiaries of
the Corporation) in any capacity other than as explicitly set
forth herein.
SECTION 10. Meaning of certain terms in connection with
Employee Benefit Plans, etc. For purposes of this Article,
references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; references to
"serving at the request of the Corporation" shall include any
service as a director, officer or employee of the Corporation
which imposes duties on, or involves services by, such director,
officer or employee, with respect to an employee benefit plan,
its participants or beneficiaries; and a person who has acted in
good faith and in a manner reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to
in this Article.
SECTION 11. Insurance. The Corporation may, but shall not
be required to, purchase and maintain insurance on behalf of any
person who is or was a director, officer or employee of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, member, employee, fiduciary
or agent of another against any liability asserted against such
person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the
Corporation would have the power or the obligation to indemnify
such person against such liability under the provisions of this
Article.
Dated: June 11, 1998.
Exhibit 5.1
Weil, Gotshal & Manges LLP
June 11, 1998
U.S. Industries, Inc.
101 Wood Avenue South
Iselin, New Jersey 08830
Ladies and Gentlemen:
We have acted as counsel to U.S. Industries, Inc., a
Delaware corporation (the "Company"), in connection with the
authorization of the filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the
"Registration Statement") of the Company for registration under
the Securities Act of 1933, as amended (the "Securities Act"), of
the issuance of up to 2,142,505 shares (the "Assumed Plan
Shares") of the Company's common stock, par value $0.01 per
share, reserved for issuance upon the exercise of options granted
pursuant to, upon the granting of restricted stock awards,
incentive stock awards, formula stock grants to directors, or
upon the settlement of stock equivalent units or performance
units under, as applicable, the Amended U.S Industries, Inc.
Stock Option Plan, the U.S. Industries, Inc. Restricted Stock
Plan (formerly, the U.S. Industries, Inc. 1997 Restricted Stock
Plan) and the U.S. Industries, Inc. 1996 Employee Stock Plan
(formerly, the Zurn Industries, Inc. 1996 Employee Stock Plan)
(collectively, the "Assumed Stock Plans").
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the
Registration Statement, the Assumed Stock Plans and such
corporate records, agreements, documents and other instruments,
and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made
such inquiries of such officers and representatives, as we have
deemed relevant and necessary as a basis for the opinion
hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents.
Based on the foregoing, and subject to the
qualifications stated herein, we are of the opinion that the
Assumed Plan Shares have been duly authorized and, when and to
the extent issued upon the exercise of options granted pursuant
to, or the grant of restricted stock awards, incentive stock
awards, or formula stock grants to directors, or upon the
settlement of stock equivalent units or performance units under,
the Assumed Stock Plans in accordance with the terms of the
Assumed Stock Plans and the instruments of award or grant
(including, in the case of shares issuable upon exercise of stock
options, payment of the exercise price thereof), will be validly
issued, fully paid and non-assessable.
The opinion expressed herein is limited to the
corporate laws of the State of Delaware and the federal laws of
the United States, and we express no opinion as to the effect on
the matters covered by this opinion of the laws of any other
jurisdiction.
We consent to the use of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
WEIL, GOTSHAL & MANGES LLP
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration
Statement on Form S-8, pertaining to the U.S. Industries, Inc.
Amended U.S. Industries, Inc. Stock Option Plan, U.S. Industries,
Inc. Restricted Stock Plan, and U.S. Industries, Inc. 1996
Employee Stock Plan, of our report dated November 17, 1997, with
respect to the consolidated financial statements and schedule of
U.S. Industries, Inc. included in its Annual Report on Amendment
No. 1 to Form 10-K/A for the year ended September 30, 1997, filed
with the Securities and Exchange Commission.
Ernst & Young LLP /s/
New York, New York
June 9, 1998
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration
Statement on Form S-8, pertaining to the U.S. Industries, Inc.
Amended U.S. Industries, Inc. Stock Option Plan, U.S. Industries,
Inc. Restricted Stock Plan, and U.S. Industries, Inc. 1996
Employee Stock Plan, of our report dated May 19, 1997, with
respect to the consolidated financial statements and schedule of
Zurn Industries, Inc. included in its Annual Report on Form 10-K
for the year ended March 31, 1997, filed with the Securities and
Exchange Commission.
Ernst & Young LLP /s/
Dallas, Texas
June 9, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8, filed with the Securities and
Exchange Commission on June 11, 1998, of U.S. Industries, Inc. of
our report dated November 14, 1997 appearing on page 26 of the
U.S. Industries, Inc. Annual Report on Form 10-K/A for the year
ended September 30, 1997.
PRICE WATERHOUSE LLP /s/
Florham Park, New Jersey
June 10, 1998
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form
S-8 for U.S. Industries, Inc. of our report on the consolidated
financial statements of Eljer Industries, Inc. and subsidiaries
dated February 14, 1997 included on Form 8-K/A dated April 7,
1997 for Zurn Industries, Inc. It should be noted that we have
audited the consolidated financial statements of Eljer
Industries, Inc. and subsidiaries as of and for the three fiscal
years ended December 29, 1996. We have not audited any financial
statements subsequent to December 29, 1996 or performed any audit
procedures subsequent to the date of our report.
ARTHUR ANDERSEN LLP /s/
Dallas, Texas
June 11, 1998
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes George H. MacLean, his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, to act, for him and in his name, place, and
stead, in any and all capacities, to sign a Registration
Statement on Form S-8 of U.S. Industries, Inc. (the "Company")
with respect to the registration, under the Securities Act of
1933, as amended, of shares of Common Stock of the Company to be
issued pursuant to the U.S. Industries, Inc. Restricted Stock
Plan, the Amended U.S. Industries, Inc. Stock Option Plan, the
U.S. Industries, Inc. 1986 Stock Option Plan, the U.S.
Industries, Inc. 1991 Stock Option Plan and the U.S. Industries,
Inc. 1996 Employee Stock Plan and to sign and file any other
documents in connection therewith, including amendments thereto,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and
perform each act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as
he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned have executed this Power of
Attorney as of the 11th day of June 1998.
/s/ David H. Clarke /s/ John G. Raos
- -------------------------- -------------------------------
David H. Clarke John G. Raos
/s/ Frank R. Reilly /s/ Brian C. Beazer
- -------------------------- -------------------------------
Frank R. Reilly Brian C. Beazer
/s/ John J. McAtee, Jr. /s/ The Hon. Charles H. Price II
- ------------------------- -------------------------------
John J. McAtee, Jr. The Hon. Charles H. Price II
/s/ Sir Harry Solomon /s/ Royall Victor III
- ------------------------- -------------------------------
Sir Harry Solomon Royall Victor III
/s/ Mark Vorder Bruegge /s/ Robert R. Womack
- ------------------------- --------------------------------
Mark Vorder Bruegge Robert R. Womack
/s/ William E. Butler /s/ James O'Leary
- ------------------------- --------------------------------
William E. Butler James O'Leary
