AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1999
REGISTRATION NO. 333-70537
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
(Exact Name of Co-Registrant Issuers as Specified in their Charters)
USI ATLANTIC CORP.
(Exact Name of Co-Registrant Guarantor as Specified in its Charter)
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DELAWARE 3998 22-3568449
DELAWARE 3998 22-3363062
DELAWARE 3998 22-3369326
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Number) Identification No.)
Organization
------------------
101 Wood Avenue South
Iselin, New Jersey 08830
(732) 767-0700
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Co-Registrants' Principal Executive Offices)
------------------
George H. MacLean, Esq.
Senior Vice President, General
Counsel & Secretary
101 Wood Avenue South
Iselin, New Jersey 08830
(732) 767-0700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
COPY TO:
Ellen J. Odoner, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
If the securities being registered on this form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS 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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
NYFS11...:\95\78595\0012\2011\REG2249P.59B
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 5, 1999
Exchange Offer for
$250,000,000 7-1/8% Senior Notes due 2003
of
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
Issuers
USI ATLANTIC CORP.
Guarantor
TERMS OF THE EXCHANGE OFFER
o We are offering to exchange registered 7-1/8% Senior Notes due 2003 for
all old unregistered 7-1/8% Senior Notes due 2003.
o The terms of the registered notes will be identical to the terms of the
old notes, except for the elimination of transfer restrictions,
registration rights and liquidated damages provisions.
o Our offer to exchange expires at 5:00 p.m., New York City time, on
_______________, 1999, unless extended.
o Our offer to exchange is not subject to any condition other than that it
not violate applicable law or any applicable interpretation of the staff
of the Securities and Exchange Commission.
o All old notes that are validly tendered and not validly withdrawn will be
exchanged.
o Tenders of old notes may be withdrawn at any time prior to the expiration
of the exchange offer.
o As of December 31, 1998, we had approximately $___ million of senior debt
outstanding, including the old notes and other debt which ranks equal in
right of payment with the old notes and the registered notes.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, NOR HAVE ANY
OF THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS MAY NOT BE COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS
IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER
TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
The date of this prospectus is _________, 1999.
<PAGE>
TABLE OF CONTENTS
PAGE
Prospectus Summary...................................................... 3
Summary of the Terms of the Exchange Offer........................... 3
Summary of the Terms of the Registered Notes......................... 5
Who We Are........................................................... 7
Where You Can Find More Information..................................... 8
Incorporation of Certain Documents by
Reference............................................................ 8
Disclosure Regarding Forward-Looking
Statements........................................................... 9
Use of Proceeds......................................................... 9
Selected Financial Data................................................. 10
Capitalization.......................................................... 11
Ratio of Earnings to Fixed Charges...................................... 11
The Exchange Offer...................................................... 12
Procedures for Tendering Old Notes...................................... 17
Description of the Registered Notes..................................... 23
Certain Federal Income Tax Considerations............................... 45
Notice to Canadian Residents............................................ 47
Legal Matters........................................................... 49
Experts................................................................. 49
2
<PAGE>
PROSPECTUS SUMMARY
This brief summary highlights selected information from the prospectus. It
does not contain all of the information that is important to you. We urge you to
carefully read and review the entire prospectus and the other documents to which
it refers to fully understand the terms of the registered notes and the exchange
offer.
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
Registration Rights.............. On October 27, 1998, we completed the
private placement offering of $250 million
of our 7-1/8% Senior Notes due 2003. We
entered into a registration rights agreement
in connection with the private offering in
which we agreed, among other things, to
deliver this prospectus to you and to
complete the exchange offer prior to May 25,
1999. You are entitled to exchange your old
notes in the exchange offer for registered
notes with substantially identical terms.
The Exchange Offer.............. We are offering to exchange up to $250
million of the registered notes for up to
$250 million of the old notes. Old notes may
be exchanged only in $1,000 increments. IF
YOU DO NOT PARTICIPATE IN THE EXCHANGE
OFFER, UPON COMPLETION OF THE EXCHANGE
OFFER, THERE MAY BE NO MARKET FOR THE OLD
NOTES AND YOU MAY HAVE DIFFICULTY SELLING
THEM.
Resales of the Registered Notes.. We believe that registered notes issued in
the exchange offer may be offered for
resale, resold or otherwise transferred by
you, without compliance with the
registration and prospectus delivery
requirements of the Securities Act if:
(1) the registered notes are acquired in the
ordinary course of your business;
(2) you are not engaging in and do not
intend to engage in a distribution of the
registered notes;
(3) you do not have an arrangement or
understanding with any person to participate
in the distribution of the registered notes;
and
(4) you are not related to us in a capacity
such as a director, officer or significant
stockholder.
If you do not meet all of the above
conditions and you transfer any registered
note issued to you without delivering a
prospectus meeting the requirements of the
3
<PAGE>
Securities Act or without an exemption from
registration of your notes from such
requirements, you may incur liability under
the Securities Act. We do not assume, or
indemnify you against, such liability. We
will ask you to represent to us that you
meet all of the above conditions when you
elect to participate in the exchange offer
by signing a letter of transmittal. Each
broker-dealer that receives registered notes
for its own account in exchange for old
notes which were acquired by such
broker-dealer as a result of market-making
activities or other trading activities, must
acknowledge that it will deliver a
prospectus meeting the requirements of the
Securities Act in connection with any
resales of such registered notes. A
broker-dealer may use this prospectus for an
offer to resell or otherwise transfer the
registered notes.
Expiration Date................. Unless we extend the exchange offer, it will
expire at 5:00 p.m., New York City time, on
_________ __, 1999. We will not extend this
time period to a date later than May 25,
1999.
Withdrawal...................... You may withdraw the tender of your old
notes at any time prior to 5:00 p.m., New
York City time, on ____________ __, 1999, or
such later date and time to which we extend
the exchange offer. We will return to you
any old notes not accepted for exchange for
any reason without expense to you as soon as
practicable after the expiration or
termination of the exchange offer.
Interest On The Registered
Notes And The Old Notes......... The registered notes and the old notes
(collectively, the "notes") will pay
interest at the rate of 7-1/8% per annum,
payable semi-annually on each April 15 and
October 15, commencing April 15, 1999.
Interest on the registered notes will accrue
from the date of the original issuance of
the old notes or from the date of the last
periodic payment of interest on the old
notes, whichever is later. No additional
interest will be paid on old notes tendered
and accepted for exchange.
Conditions To The Exchange Offer.. The exchange offer is subject to the
following conditions, each of which may be
waived by us:
(1) any injunction, order or decree shall
have been issued by any court or any
governmental agency that would prohibit,
prevent or otherwise materially impair our
ability to proceed with the exchange offer;
or
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<PAGE>
(2) the exchange offer shall violate any
applicable law or any applicable
interpretation of the Staff of the
Securities and Exchange Commission. If we
waive a condition, we may be required, in
certain instances, to extend the expiration
date of the exchange offer.
Procedures For Tendering Old
Notes............................ If you wish to tender your old notes in the
exchange offer you must transmit to The
First National Bank of Chicago, as the
exchange agent, by 5:00 p.m., New York City
time, on the expiration date:
- a properly completed and duly executed
letter of transmittal, including all other
documents required by the letter of
transmittal, and one or more outstanding
certificated old notes, or
- the documents necessary for compliance
with the guaranteed delivery procedures set
forth below.
If you hold your old notes through The
Depositary Trust Company and you wish to
participate in the exchange offer, you may
do so through The Depositary Trust Company's
Automated Tender Offer Program. By
participating in the exchange offer, you
will agree to be bound by the letter of
transmittal as through you had executed such
letter of transmittal.
Exchange Agent................... The First National Bank of Chicago is
serving as exchange agent for the exchange
offer.
Federal Income Tax
Considerations................... The exchange of old notes for registered
notes in the exchange offer will not
constitute a sale or an exchange for federal
income tax purposes. See "Certain Federal
Income Tax Considerations."
SUMMARY OF THE TERMS OF THE REGISTERED NOTES
Issuers.......................... U.S. Industries, Inc.
USI American Holdings, Inc.
Guarantor........................ USI Atlantic Corp.
Securities Offered............... $250 million aggregate principal amount of
7-1/8% Senior Notes due 2003 which have been
registered under the Securities Act.
Maturity Date.................... October 15, 2003.
Interest......................... The registered notes will bear interest at a
rate of 7- 1/8% per annum, payable
semi-annually on each April 15 and October
15, commencing April 15, 1999.
5
<PAGE>
Optional Redemption.............. The registered notes are redeemable, in
whole or in part, at our option on 30 days'
prior notice at the redemption prices stated
in "Description of the Registered
Notes-Optional Redemption" plus accrued and
unpaid interest to the date of redemption.
Guarantees....................... The registered notes are fully and
unconditionally guaranteed on a senior
unsecured basis by the guarantor. See
"Description of the Registered
Notes-Guarantee."
Ranking.......................... The registered notes and the guarantee are
general unsecured obligations of the issuers
and the guarantor, respectively. The notes
and the guarantee will rank equal in right
of payment with all other existing and
future unsecured indebtedness of the issuers
and the guarantor, respectively, unless the
holders of such indebtedness agree to give
priority to the notes.
Events of Default................ The indenture describes those circumstances
which are considered events of default with
respect to any series of notes offered under
the terms of the indenture. See
"Description of the Registered Notes-Events
of Default."
Restrictive Covenants............ The indenture contains certain limitations
on our ability and the ability of our
subsidiaries to, among other things, incur
additional indebtedness, create liens, enter
into certain sale and leaseback transactions
and consolidate, merge with or sell all or
substantially all of our assets to another
person. See "Description of the Registered
Notes-Certain Covenants" and "Description of
the Registered Notes-Consolidation, Merger,
Conveyance, Transfer or Lease."
Use of Proceeds.................. We will not receive any cash proceeds from
the exchange offer.
6
<PAGE>
WHO WE ARE
We manufacture and distribute a broad range of consumer and industrial
products through four operating divisions summarized below. Our businesses have
operations and markets both inside and outside the United States. Please refer
to our Form 10-K and other filings for further information.
o USI BATH AND PLUMBING PRODUCTS manufactures and distributes a full line of
bath and plumbing products under the brand names Jacuzzi, Eljer and Zurn.
o LIGHTING CORPORATION OF AMERICA manufactures and distributes indoor and
outdoor lighting fixtures. Its brand names include Architectural Area
Lighting, Columbia, Kim, Progress, Siemens (under license from Siemens AG)
and SiTeco.
o USI HARDWARE AND TOOLS manufactures and distributes lawn and garden tools,
hand tools, ladders, windows and metal television picture tube components.
Its brand names include Ames, Garant, Spear and Jackson and Woodings-Verona
tools; Keller ladders; and BiltBest windows.
o USI DIVERSIFIED manufactures a wide range of consumer and industrial
products. These include Rainbow vacuum cleaners; Ertl die-cast toys and
replicas; Georgia Boot and Durango footwear; leather, metal and plastic
automotive components; overhauled aircraft engine bearings; and leadframes
for the electronics industry.
Our principal executive offices are located at 101 Wood Avenue South, Iselin,
New Jersey 08830, telephone number (732) 767-0700.
7
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational and reporting requirements of the
Securities Exchange Act of 1934, and accordingly, file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may
read and copy any reports, statements and other information that we file with
the SEC at the SEC's public reference facilities at Room 1024, 450 Fifth Street,
N.W., Washington D.C. 20549. Please call 1-800-SEC-0330 for further information
on the public reference facilities. You may also obtain information about us
from the following regional offices of the SEC: Seven World Trade Center, 13th
Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60601-2511. Copies of these materials can be
obtained at prescribed rates. Our filings with the SEC are also available on the
SEC's home page on the Internet at http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange, Inc. and related
materials may be inspected at the offices of the NYSE at 20 Broad Street, New
York, New York 10005.
We have filed a registration statement on Form S-4 to register with the SEC
notes to be issued in the exchange offer. This prospectus is part of that
registration statement. As allowed by the SEC's rules, this prospectus does not
contain all of the information you can find in the registration statement or the
exhibits to the registration statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced this way is considered part of
this prospectus, and any information filed with the SEC subsequent to this
prospectus will automatically be deemed to update and supersede this
information. Any information so updated or superseded shall not be a part of
this prospectus except as so updated or superseded. We incorporate by reference
the following documents which have been filed with the SEC:
1. Our Current Report on Form 8-K filed on October 16, 1998;
2. Our Annual Report on Form 10-K for the year ended October 3, 1998 filed
December 14, 1998;
3. Our Amendment to Annual Report on Form 10-K/A for the year ended
October 3, 1998 filed February 3, 1999;
4. Our Proxy Statement, dated January 4, 1999; and
5. Our Quarterly Report on Form 10-Q for the fiscal quarter ended January
2, 1999.
We incorporate by reference all documents filed pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
and prior to the termination of the exchange offer.
We will promptly provide without charge to each person to whom this
prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated by reference in this prospectus, other than exhibits
to such documents, unless such exhibits are specifically incorporated by
reference in such documents. Requests for such copies and information should be
directed to George H. MacLean, Esq., Senior Vice President, General Counsel and
Secretary, U.S. Industries, Inc., 101 Wood Avenue South, P.O. Box 169, Iselin,
New Jersey 08830-0169, telephone (732) 767-0700.
8
<PAGE>
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference in this
prospectus, contains forward-looking statements about our financial condition,
results of operations and business. All statements other than statements of
historical fact are, or may be deemed to be, forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Exchange Act. Various economic and competitive factors could cause actual
results to differ materially from the expectations reflected in such
forward-looking statements, including factors which are outside our control,
such as interest rates, foreign currency exchange rates, instability in domestic
and foreign financial markets, consumer spending patterns, availability of
consumer and commercial credit, levels of residential and commercial
construction, levels of automotive production and changes in raw material costs
and Year 2000 issues, along with the other factors noted in this prospectus, and
in the other documents incorporated by reference in this prospectus. In
addition, our future results are subject to uncertainties relating to our
ability to consummate our business strategy, including realizing marketing
synergies and cost savings from the integration of our acquired businesses. All
subsequent written and oral forward-looking statements attributable to us are
expressly qualified in their entirety by the foregoing factors.
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the
registration rights agreement. We will not receive any cash proceeds from the
issuance of the registered notes. The old notes surrendered in exchange for the
registered notes will be retired and cancelled and cannot be reissued. As a
result, the issuance of the registered notes will not result in any increase or
decrease in the indebtedness of the issuers.
The net proceeds of the private offering of the old notes, after deducting
the estimated underwriting discounts and expenses, were $247 million. We applied
$200 million of the net proceeds to repay all amounts outstanding under a
short-term note. The remainder was used to repay borrowings under uncommitted
bank credit lines, and for general corporate purposes.
9
<PAGE>
SELECTED FINANCIAL DATA
The following tables sets forth the consolidated (combined) historical
selected financial data of the Company.
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED
DECEMBER 31, FOR THE FISCAL YEARS ENDED SEPTEMBER 30,
-------------------- --------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1998 1997 1998 (1) 1997 1996 1995 (5) 1994
--------- --------- ----------- --------- --------- ----------- ---------
(IN MILLIONS, EXCEPT PER SHARE)
INCOME STATEMENT DATA:
Net sales........................................ $ 796 $ 744 $ 3,310 $ 2,716 $ 2,364 $ 2,181 $ 2,080
Operating income................................. 55 70 149 287 239 105 196
Income (loss) from continuing operations......... 23 32 7 136 104 (42) 53
Net income (loss)................................ 23 31 (44) 252 138 (72) 87
Income from continuing operations per share (2)
Basic.......................................... 0.24 0.34 .07 1.48 1.09 -- --
Diluted........................................ 0.23 0.33 .07 1.43 1.07 -- --
Net income (loss) per share (2)
Basic.......................................... 0.24 0.33 (.46) 2.73 1.45 -- --
Diluted........................................ 0.23 0.32 (.45) 2.64 1.42 -- --
Cash dividend declared per share (4)............. 0.05 0.05 .20 .05 -- -- --
BALANCE SHEET DATA (AT PERIOD END):
Cash and cash equivalents........................ 51 61 $ 44 $ 67 $ 57 $ 67 $ 34
Working capital.................................. 828 727 807 651 697 721 1,159
Total assets..................................... 2,737 2,744 2,812 2,538 2,502 2,232 2,608
Total debt (3)................................... 955 838 966 746 930 1,000 997
Stockholders' equity/Invested capital............ 977 1,054 960 950 758 643 1,022
</TABLE>
- ------------------------------
(1) The fiscal year ended September 30, 1998 included non-recurring and unusual
after-tax charges of $140 million of merger, restructuring and other costs,
$7 million to write-off interest rate protection agreements, $34 million to
discontinue a business, and $5 million associated with the refinancing of
Zurn's outstanding indebtedness, totaling $186 million.
(2) All earnings per share data has been prepared in accordance with SFAS 128,
which was adopted on December 31, 1997. The adoption of SFAS 128 did not
have a material impact on the information previously presented. Prior to
fiscal 1996, earnings per share information is not presented as such
information is not indicative of the Company's continuing capital structure.
(3) Amount in fiscal 1994 primarily represents intercompany notes payable to
Hanson plc.
(4) Cash dividends exclude dividends declared and paid by Zurn prior to the
merger.
(5) USI changed its accounting policy for evaluating goodwill impairment in
fiscal 1995, resulting in a charge of $98 million, which affects
comparability between fiscal 1995 and fiscal 1994. Fiscal 1995 operating
income includes charges of $2 million to close certain underutilized
facilities of the lighting products operations.
10
<PAGE>
CAPITALIZATION
The following table, which is unaudited, sets forth the capitalization of
our company at December 31, 1998. It reflects the offering of old notes and the
use of proceeds from that offering, reduced by transaction costs, fees and costs
paid in October 1998 to settle outstanding interest rate protection agreements
net of tax benefits. See "Use of Proceeds." This table should be read in
conjunction with the financial information included in the Form 10-K and the
Form 10-Q, as amended. See "Incorporation of Certain Documents by Reference."
Cash and cash equivalents.................... $ 51
=====
Short-term debt.............................. $ 17
Long-term Debt:..............................
Credit Facility:........................... 503
7 1/4% Notes Due 2006...................... 123
7 1/8% Notes Due 2003...................... 247
Other...................................... 65
-----
Total debt.............................. 955
-----
Stockholders' equity......................... 977
-----
Total capitalization....................$1,932
======
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
our company for fiscal 1998, 1997, 1996, 1995 and 1994 and the three months
ended December 31, 1998 and 1997.
For purposes of computing the ratio of earnings to fixed charges, "fixed
charges" are defined as interest expense plus a portion of rental expense
representing the interest factor, and "earnings" are defined as income from
continuing operations before income taxes and fixed charges. The ratio of
earnings to fixed charges for fiscal 1998 was affected by non-recurring and
unusual pre-tax charges of $154 million. Before taking into account such
charges, the ratio of earnings to fixed charges for fiscal 1998 would have been
4.0x. The ratio of earnings to fixed charges for fiscal 1995 was affected by
goodwill impairment and other non-recurring and unusual pre-tax charges of $100
million. Before taking into account such charges, the ratio of earnings to fixed
charges for fiscal 1995 would have been 2.0x.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
FISCAL YEAR ENDED SEPTEMBER 30, DECEMBER 31,
- ------------------------------------------------------------------------- ----------------------
<S> <C> <C> <C> <C> <C> <C>
1998 1997 1996 1995 1994 1998 1997
- -------------- -------------- ------------- ----------- ------------ ---------- ----------
2.1 4.5x 3.6x 1.1x 1.9x 2.8x 4.0x
</TABLE>
11
<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
We issued the old notes on October 27, 1998 (the "Initial Issue Date").
The initial purchasers have advised us that they subsequently resold the old
notes to "qualified institutional buyers" in reliance on Rule 144A under the
Securities Act. As a condition to the private offering, we entered into the
registration rights agreement, which requires that we file a registration
statement under the Securities Act with respect to the registered notes to be
issued in the exchange offer and, upon the effectiveness of the registration
statement, offer to you the opportunity to exchange your notes for a like
principal amount of registered notes. These registered notes will be issued
without a restrictive legend and, except as set forth below, may be reoffered
and resold by you without registration under the Securities Act. After we
complete the exchange offer, our obligations with respect to the registration of
the old notes and the registered notes will terminate, except as provided in the
last paragraph of this section. As a result of the filing and the effectiveness
of the registration statement, assuming we complete the exchange offer by May
25, 1999, certain prospective increases in the interest rate on the old notes
provided for in the registration rights agreement will not occur.
Based on no-action letters issued by the staff of the SEC with respect to
similar transactions, we believe that the registered notes to be issued in the
exchange offer are not subject to such transfer restrictions when the notes are
held by a person who is not related to the issuers, such as directors, officers,
or significant stockholders, provided that the holder represents to us that:
(1) the registered notes are acquired in the ordinary course of the
holder's business; and
(2) the holder is not engaged in, has no understanding with any person
to participate in, and does not intend to engage in, any
distribution of the registered notes.
However, we have not sought a no-action letter with respect to the
exchange offer and we can not assure you that the staff of the SEC would make a
similar determination with respect to the exchange offer. Any holder who tenders
his old notes in the exchange offer with any intention of participating in a
distribution of registered notes
(1) cannot rely on such an interpretation by the staff of the SEC,
(2) will not be able to validly tender old notes in the exchange offer,
and
(3) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any secondary
resale transactions.
In addition, each broker-dealer that receives registered notes for its
own account pursuant to the exchange offer must acknowledge that it will deliver
a prospectus in connection with any resale of such registered notes. The letter
of transmittal accompanying this prospectus states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is acting in the capacity of an "underwriter" within the meaning of Section
2(11) of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of registered notes received in exchange for old notes where such
old notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. Pursuant to the registration rights
agreement, we agreed to make this prospectus available to any broker-dealer for
use in connection with any such resale.
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<PAGE>
If you will not receive freely tradeable registered notes in the exchange
offer or are not eligible to participate in the exchange offer, you can elect,
by so indicating on the letter of transmittal and providing certain additional
necessary information, to have your old notes registered in a shelf registration
statement on an appropriate form pursuant to Rule 415 under the Securities Act.
In the event that we are obligated to file a shelf registration statement, we
will be required to keep the shelf registration statement effective for a period
of two years or such shorter period that will terminate when all of the old
notes covered by the shelf registration statement have been sold pursuant to the
registration statement. Other than as set forth in this paragraph, you will not
have the right to require us to register your old notes under the Securities
Act.
TERMS OF THE EXCHANGE OFFER
Upon satisfaction or waiver of all of the conditions of the exchange
offer, we will accept, any and all old notes properly tendered and not withdrawn
prior to the expiration date and will issue the registered notes promptly after
acceptance of the old notes. See "-Conditions to the Exchange Offer" and
"Procedures for Tendering Old Notes." We will issue $1,000 principal amount of
registered notes in exchange for each $1,000 principal amount of outstanding old
notes accepted in the exchange offer. As of the date of this prospectus,
$250,000,000 aggregate principal amount of the old notes are outstanding.
Holders may tender some or all of their old notes pursuant to the exchange
offer. However, old notes may be tendered only in integral multiples of $1,000.
The registered notes are identical to the old notes except for the
elimination of transfer restrictions, registration rights and liquidated damages
provisions. The registered notes will evidence the same debt as the old notes.
The registered notes will be issued under and entitled to the benefits of the
indenture and, together with the old notes, will be deemed one issue of notes.
This prospectus, together with the letter of transmittal, is being sent
to all registered holders and to others believed to have beneficial interests in
the old notes. Holders of old notes do not have any appraisal or dissenters'
rights under the General Corporation Law of the State of Delaware or the
indenture in connection with the exchange offer. We intend to conduct the
exchange offer in accordance with the applicable requirements of the Securities
Act, the Exchange Act and the rules and regulations of the Commission
promulgated under those acts.
For purposes of the exchange offer, we will be deemed to have accepted
validly tendered old notes when, as and if we have given oral or written notice
thereof to the exchange agent. The exchange agent will act as agent for the
tendering holders for the purpose of receiving the registered notes from us and
delivering such registered notes to such holders.
If we do not accept any tendered old notes because of an invalid tender
or the occurrence of any of the conditions specified under "-Conditions to the
Exchange Offer," we will return such unaccepted old notes, without expense, to
the tendering holder thereof as promptly as practicable after the expiration
date.
Holders who tender old notes in the exchange offer will not be required
to pay brokerage commissions or fees or, except as set forth below under
"-Transfer Taxes," transfer taxes with respect to the exchange of old notes
pursuant to the exchange offer. We will pay all charges and expenses, other than
certain applicable taxes, in connection with the exchange offer. See "-Fees and
Expenses."
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EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "expiration date" shall mean 5:00 p.m., New York City time, on ,
1999, unless we, in our sole discretion, extend the exchange offer, in which
case the term "expiration date" shall mean the latest date and time to which the
exchange offer is extended. In order to extend the exchange offer, we will
notify the exchange agent by oral or written notice and each registered holder
by means of press release or other public announcement of any extension, in each
case, prior to 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date.
We reserve the right, in our sole discretion,
(1) to delay accepting any old notes,
(2) to extend the exchange offer,
(3) to terminate the exchange offer if the conditions set forth below
under "-Conditions to the Exchange Offer" shall not have been
satisfied, or
(4) to amend the terms of the exchange offer in any manner.
We will notify the exchange agent of any delay, extension, termination or
amendment by oral or written notice. We will additionally notify each registered
holder of any amendment. We will give to the exchange agent written confirmation
of any oral notice.
We acknowledge and undertake to comply with the provisions of Rule
14e-1(c) under the Exchange Act which requires us to pay the consideration
offered, or return the old notes surrendered for exchange, promptly after the
termination or withdrawal of the exchange offer. We will notify as promptly as
practicable of any extension, termination or amendment.
EXCHANGE DATE
As soon as practicable after the close of the exchange offer, we will
accept for exchange all old notes properly tendered and not validly withdrawn
prior to 5:00 p.m., New York City time, on the expiration date pursuant to the
exchange offer in accordance with the terms of the registration statement and
the letter of transmittal.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, and subject
to our obligations under the registration rights agreement, we shall not be
required to accept any old notes for exchange, issue registered notes in
exchange for any old notes and may terminate or amend the exchange offer, if:
(1) any injunction, order or decree has been issued by any court or any
governmental agency that would prohibit, prevent or otherwise materially
impair our ability to proceed with the exchange offer, or
(2) the exchange offer violates any applicable law or any applicable
interpretation of the staff of the SEC.
These conditions are for our sole benefit and may be asserted by us
regardless of the circumstances giving rise to any such condition, subject to
applicable law. We also may waive in whole
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or in part at any time and from time to time any such condition in our sole
discretion. If we waive a condition, we may be required in certain instances, to
extend the expiration date of the exchange offer. Our failure at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right and such right shall be deemed an ongoing right which may be asserted at
any time and from time to time.
In addition, we will not accept for exchange any old notes tendered, and
no registered notes will be issued in exchange for any such old notes, if at
such time any stop order shall be threatened by the SEC or be in effect with
respect to the registration statement or the qualification of the indenture
under the Trust Indenture Act of 1939.
The exchange offer is not conditioned on any minimum aggregate principal
amount of old notes being tendered for exchange.
CONSEQUENCES OF FAILURE TO EXCHANGE
Any old notes not tendered pursuant to the exchange offer will remain
outstanding and continue to accrue interest. The old notes will be subject to
transfer restrictions because they are not registered under the Securities Act.
Accordingly, prior to the date that is two years after the later of the Initial
Issue Date and the last date on which we or any of our affiliates was the owner
of such old notes, such old notes may be resold only
(1) to us,
(2) to a person whom the seller reasonably believes is a "qualified
institutional buyer" purchasing for its own account or for the
account of another "qualified institutional buyer" in compliance
with the resale limitations of Rule 144A,
(3) to an Institutional Accredited Investor that, prior to such
transfer, furnishes to the trustee a written certification
containing certain representations and agreements relating to the
restrictions on transfer of the notes (the form of which letter can
be obtained from the trustee),
(4) pursuant to the limitations on resale provided by Rule 144 under the
Securities Act (if available),
(5) pursuant to the resale provisions of Rule 904 of Regulation S under
the Securities Act,
(6) pursuant to an effective registration statement under the Securities
Act, or
(7) pursuant to any other available exemption from the registration
requirements of the Securities Act,
subject in each of the foregoing cases to compliance with applicable state
securities laws. As a result of these restrictions on resale, the liquidity of
the market for non-tendered old notes will be adversely affected upon completion
of the exchange offer.
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FEES AND EXPENSES
We will not make any payments to brokers, dealers or others soliciting
acceptances of the exchange offer. The principal solicitation is being made by
mail; however, additional solicitations may be made in person or by telephone by
our officers and employees.
Expenses incurred in connection with the exchange offer will be paid by
us and are estimated in the aggregate to be approximately $100,000 which
includes the fees and expenses of the trustee and the exchange agent, accounting
and legal fees and other miscellaneous fees and expenses.
ACCOUNTING TREATMENT
We will not recognize any gain or loss for accounting purposes upon the
consummation of the exchange offer. We will amortize the expenses of the
exchange offer over the term of the registered notes.
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PROCEDURES FOR TENDERING OLD NOTES
TENDERING OLD NOTES
The tender of old notes pursuant to any of the procedures set forth in
this prospectus and in the letter of transmittal will constitute a binding
agreement between the tendering holder and us in accordance with the terms and
subject to the conditions set forth in this prospectus and in the letter of
transmittal. The tender of old notes will constitute an agreement to deliver
good and marketable title to all tendered old notes prior to the expiration date
free and clear of all liens, charges, claims, encumbrances, interests and
restrictions of any kind.
EXCEPT AS PROVIDED IN "-GUARANTEED DELIVERY PROCEDURES," UNLESS THE OLD
NOTES BEING TENDERED ARE DEPOSITED BY YOU WITH THE EXCHANGE AGENT PRIOR TO THE
EXPIRATION DATE ACCOMPANIED BY A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL, WE MAY, AT OUR OPTION, REJECT SUCH TENDER. ISSUANCE OF REGISTERED
NOTES WILL BE MADE ONLY AGAINST DEPOSIT OF TENDERED OLD NOTES AND DELIVERY OF
ALL OTHER REQUIRED DOCUMENTS. PARTICIPANTS IN THE DEPOSITORY TRUST COMPANY
TENDERING THROUGH ITS AUTOMATED TENDER OFFER PROGRAM WILL BE DEEMED TO HAVE MADE
VALID DELIVERY WHERE THE EXCHANGE AGENT RECEIVES AN AGENT'S MESSAGE PRIOR TO THE
EXPIRATION DATE.
Accordingly, to properly tender old notes, the following procedures must
be followed:
Notes held through a Custodian. Each beneficial owner holding old notes
through a participant in DTC must instruct that participant to cause its old
notes to be tendered in accordance with the procedures set forth in this
prospectus.
Notes held through DTC. The exchange agent will establish accounts at DTC
for purposes of the exchange offer with respect to old notes held through DTC.
Any financial institution that is a participant in DTC may make book-entry
delivery of interests in old notes into the exchange agent's account through
DTC's Automated Tender Offer Program.
Any financial institution that is a participant in DTC's book-entry
system may make book-entry delivery of old notes by:
(1) electronically transmitting its acceptance through DTC's Automated
Tender Offer Program, or
(2) complying with the guaranteed delivery procedures set forth below
and in the notice of guaranteed delivery. See "-Guaranteed Delivery
Procedures-Notes held through DTC."
Although delivery of interests in the old notes may be effected through
book-entry transfer into the exchange agent's account through DTC's Automated
Tender Offer Program, an agent's message in connection with such book-entry
transfer, and any other required documents, must be, in any case, transmitted to
and received by the exchange agent at its address set forth under "-Exchange
Agent." Delivery of documents to DTC does not constitute delivery to the
exchange agent. The confirmation of a book-entry transfer into the exchange
agent's account at DTC as described above is referred to herein as a "book-entry
confirmation."
The term "agent's message" means a message transmitted by DTC to, and
received by, the exchange agent and forming a part of the book-entry
confirmation, which states that DTC has received an express acknowledgement from
each participant tendering through DTC's Automated Tender Offer
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Program that such participants have received a letter of transmittal and agree
to be bound by the terms of the letter of transmittal and that either of the
issuers may enforce such agreement against such participants.
Notes held by Holders. Each holder must (1) complete and sign the
accompanying letter of transmittal, and mail or deliver such letter of
transmittal, and any other documents required by the letter of transmittal,
together with certificate(s) representing all tendered old notes, to the
exchange agent at its address set forth under "-Exchange Agent," or (2) comply
with the guaranteed delivery procedures set forth below and in the notice of
guaranteed delivery. See "-Guaranteed Delivery Procedures-Notes held by
Holders."
All signatures on a letter of transmittal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program; provided, however, that signatures on a letter of transmittal
need not be guaranteed if old notes are tendered for the account of an "eligible
institution."
If a letter of transmittal or any old note is signed by a corporation or
person acting in a fiduciary or representative capacity, such person must so
indicate when signing, and proper evidence satisfactory to us of the authority
of such person must be submitted.
Holders should indicate in the applicable box in the letter of
transmittal the name and address to which substitute certificates evidencing old
notes for amounts not tendered are to be issued or sent, if different from the
name and address of the person signing the letter of transmittal. In the case of
issuance in a different name, the employer identification or social security
number of the person named must also be indicated. If no instructions are given,
the untendered old notes will be returned to the person signing the letter of
transmittal.
By tendering, each holder and each participant in DTC will represent to
us that, among other things,
(1) it is not an affiliate of either issuer,
(2) it is not a broker-dealer tendering old notes acquired directly from
either issuer for its own account,
(3) the registered notes acquired in the exchange offer are being
obtained in the ordinary course of business of such holder and
(4) such holder has no understandings with any person to participate in
the exchange offer for the purpose of distributing the registered
notes.
We will not accept any alternative, conditional, irregular or contingent
tenders (unless waived by us). By executing a letter of transmittal or
transmitting an acceptance through DTC's Automated Tender Offer Program, as the
case may be, each tendering holder waives any right to receive any notice of the
acceptance for purchase of its old notes.
We will resolve all questions as to the validity, form, eligibility and
acceptance of tendered old notes, and such determination will be final and
binding. We reserve the absolute right to reject any or all tenders that are not
in proper form or the acceptance of which may, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any condition to the
exchange offer and any irregularities or conditions of tender as to particular
old notes. Our interpretation of the terms and conditions of the exchange offer,
including the instructions in the letter of transmittal, will be final and
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binding. Unless waived, any irregularities in connection with tenders must be
cured within such time as we shall determine. We, along with the exchange agent,
shall be under no duty to give notification of defects in such tenders and shall
not incur liabilities for failure to give such notification. Tenders of old
notes will not be deemed to have been made until such irregularities have been
cured or waived. Any old notes received by the exchange agent that are not
properly tendered and as to which the irregularities have not been cured or
waived will be returned by the exchange agent to the tendering holder, unless
otherwise provided in the letter of transmittal, as soon as practicable
following the expiration date.
LETTERS OF TRANSMITTAL AND OLD NOTES MUST BE SENT ONLY TO THE EXCHANGE
AGENT. DO NOT SEND LETTERS OF TRANSMITTAL OR OLD NOTES TO EITHER OF THE ISSUERS,
THE GUARANTOR OR DTC.
The method of delivery of old notes, letters of transmittal, any required
signature guaranties and all other required documents, including delivery
through DTC and any acceptance through DTC's Automated Tender Offer Program, is
at the election and risk of the persons tendering and delivering acceptances or
Letters of Transmittal and, except as otherwise provided in the applicable
letter of transmittal, delivery will be deemed made only when actually received
by the exchange agent. If delivery is by mail, we suggest that you use properly
insured, registered mail with return receipt requested, and that the mailing be
made sufficiently in advance of the expiration date to permit delivery to the
exchange agent prior to the expiration date.
GUARANTEED DELIVERY PROCEDURES
NOTES HELD THROUGH DTC. Participants in DTC holding old notes through DTC
who wish to cause their old notes to be tendered, but who cannot transmit their
acceptances through DTC's Automated Tender Offer Program prior to the expiration
date, may tender their old notes if:
(1) guaranteed delivery is made by or through:
o a bank;
o a broker, dealer, municipal securities dealer, municipal securities
broker, government securities dealer or government securities
broker;
o a credit union;
o a national securities exchange, registered securities association
or clearing agency; or
o a savings institution that is a participant in a Securities
Transfer Association recognized program;
(2) prior to the expiration date, the exchange agent receives by mail,
hand delivery, facsimile transmission or overnight courier from such
eligible institution a properly completed and duly executed notice of
guaranteed delivery substantially in the form provided with this
prospectus; and
(3) book-entry confirmation and an agent's message in connection therewith
(as described above) are received by the exchange agent within three
NYSE trading days after the date of the execution of the notice of
guaranteed delivery.
NOTES HELD BY HOLDERS. Holders who wish to tender their old notes but
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(1) whose old notes are not immediately available and will not be
available for tendering prior to the expiration date, or
(2) who cannot deliver their old notes, the letter of transmittal, or any
other required documents to the exchange agent prior to the expiration
date,
may effect a tender if:
o the tender is made by or through an eligible institution;
o prior to the expiration date, the exchange agent receives by mail,
hand delivery, facsimile transmission or overnight courier from such
eligible institution a properly completed and duly executed notice of
guaranteed delivery substantially in the form provided with this
prospectus; and
o a properly completed and executed letter of transmittal, as well as
the certificate(s) representing all tendered old notes in proper form
for transfer, and all other documents required by the letter of
transmittal, are received by the exchange agent within three NYSE
trading days after the date of the execution of the notice of
guaranteed delivery.
WITHDRAWAL RIGHTS
You may withdraw tenders of old notes at any time prior to 5:00 p.m., New
York City time, on the expiration date. Withdrawals may be made of any portion
of such old notes in integral multiples of $1,000 principal amount due at the
stated maturity. Any old notes properly withdrawn will be deemed to be not
validly tendered for purposes of the exchange offer.
NOTES HELD THROUGH DTC. Participants in DTC holding old notes who have
transmitted their acceptances through DTC's Automated Tender Offer Program may,
prior to 5:00 p.m., New York City time, on the expiration date, withdraw its
tender of old notes by delivering to the exchange agent, at its address set
forth under "-Exchange Agent," a written, telegraphic or facsimile notice of
withdrawal of such instruction. Such notice of withdrawal must contain:
o the name and number of the participant,
o the principal amount due at the stated maturity of old notes to
which such withdrawal related, and
o the signature of the participant.
Receipt of such written notice of withdrawal by the exchange agent effectuates a
withdrawal.
NOTES HELD BY HOLDERS. Holders may withdraw their tender of old notes,
prior to 5:00 p.m., New York City time, on the expiration date, by delivering to
the exchange agent, at its address set forth under "-Exchange Agent," a written,
telegraphic or facsimile notice of withdrawal. Any such notice of withdrawal
must:
(1) specify the name of the person who tendered the old notes to be
withdrawn,
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(2) contain a description of the old notes to be withdrawn and identify
the certificate number or numbers shown on the particular certificates
evidencing such old notes and the aggregate principal amount due at
the stated maturity represented by such old notes and
(3) be signed by the holder of such old notes in the same manner,
including any required signature guaranties, as the original signature
on the letter of transmittal by which such old notes were tendered, or
be accompanied by (x) documents of transfer in a form acceptable to
us, in our sole discretion and (y) a properly completed irrevocable
proxy that authorized such person to effect such revocation on behalf
of such holder.
If the old notes to be withdrawn have been delivered or otherwise identified to
the exchange agent, a signed notice of withdrawal is effective immediately upon
written, telegraphic or facsimile notice of withdrawal even if physical release
is not yet effected.
All signatures on a notice of withdrawal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program; provided, however, that signatures on the notice of
withdrawal need not be guaranteed if the old notes being withdrawn are held for
the account of an eligible institution.
A withdrawal of an instruction or a withdrawal of a tender must be
executed by a participant in DTC or a holder of old notes, as the case may be,
in the same manner as the person's name appears on its transmission through
DTC's Automated Tender Offer Program or the letter of transmittal, as the case
may be, to which such withdrawal relates. If a notice of withdrawal is signed by
a trustee, partner, executor, administrator, guardian, attorney-in-fact, agent,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person must so indicate when signing and must submit with the
revocation appropriate evidence of authority to execute the notice of
withdrawal. A participant in DTC or a holder may withdraw an instruction or a
tender, as the case may be, only if such withdrawal complies with the provisions
of this prospectus.
A withdrawal of a tender of old notes by a participant in DTC or a holder,
as the case may be, may be rescinded only by a new transmission of an acceptance
through DTC's Automated Tender Offer Program or execution and delivery of a new
letter of transmittal, as the case may be, in accordance with the procedures
described in this prospectus.
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EXCHANGE AGENT
The First National Bank of Chicago has been appointed as exchange agent
for the exchange offer. Questions, requests for assistance and requests for
additional copies of this prospectus or of the letter of transmittal should be
directed to the exchange agent addressed as follows:
By Registered or Certified Mail By Hand
or By Overnight Courier:
The First National Bank of Chicago
as Exchange Agent
153 West 51st Street
New York, NY 10019
Facsimile: By Telephone:
(212) 373-1383 (212) 373-1339
The exchange agent also acts as trustee under the indenture.
TRANSFER TAXES
Holders of old notes who tender their old notes for exchange will not be
obligated to pay any transfer taxes in connection with such tender, except that
holders who instruct us to register registered notes in the name of, or request
that old notes not tendered or not accepted in the exchange offer be returned
to, a person other than the registered tendering holder will be responsible for
the payment of any applicable transfer tax on such transfer.
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DESCRIPTION OF THE REGISTERED NOTES
The registered notes will be issued, and the old notes were issued, under
an indenture among the issuers, the guarantor and The First National Bank of
Chicago, as trustee. We have filed a copy of the indenture as an exhibit to the
registration statement which includes this prospectus.
The following is a summary of the material provisions of the indenture and
the notes. We urge you to read the indenture and the notes because they, and not
this description, define your rights as holders of these notes. For the meaning
of capitalized terms used without definition, see "-Definitions."
As used in this Section of the prospectus, the terms "we", "us" and "our"
mean U.S. Industries, Inc. and USI American Holdings, Inc. and are used
interchangeably within the term the "issuers."
GENERAL
The notes, which mature on October 15, 2003, are limited to $250 million
in aggregate principal amount. The notes pay interest at the rate of 7-1/8% per
annum, payable on April 15 and October 15 of each year, commencing April 15,
1999. Interest on the notes will accrue from the most recent date on which
interest has been paid or, if no interest has been paid, from the original date
of issuance. Interest will be computed on the basis of a 360-day year comprising
twelve 30-day months. Any old notes that remain outstanding after the completion
of the exchange offer will be treated as a single class of securities under the
indenture with the registered notes issued in connection with the exchange
offer. See "The Exchange Offer."
Principal, premium and interest on the notes will be payable and all of
the notes will be exchangeable and transferable, at our office or agency in the
City of New York or, at our option, interest may be paid by check mailed to the
address of the person entitled thereto as such address appears in the security
register. Our office or agency in the City of New York will initially will be
the office of the trustee located at 153 West 51st Street, New York, NY 10019.
The notes will be issued only in registered form without coupons and only
in denominations of $1,000 and integral multiples of $1,000. Any purchase of
notes will be subject to a minimum initial purchase obligation of $250,000 for
each person acquiring notes. No service charge will be made for any
registration, transfer, exchange or redemption of notes, but we may require
payment in certain circumstances of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration, transfer, exchange or redemption.
We do not presently intend to apply for listing of the notes on any
national securities exchange or for inclusion of the notes in any automated
quotation system.
FURTHER ISSUES
The indenture permits the issuance of additional series of notes. Any
notes subsequently offered under the indenture will rank equally or lesser in
right of payment to the notes. We may from time to time, without the consent of
holders, create and issue additional notes having substantially the same terms
and conditions as any series of notes. Any such additional notes may be combined
with existing notes to form a single series under the indenture.
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GUARANTEE
Our obligations under the notes will be fully and unconditionally
guaranteed by USI Atlantic. The guarantee will be on a senior unsecured basis.
The obligations of USI Atlantic. under the guarantee will be limited as
necessary to prevent the guarantee from constituting a fraudulent conveyance or
fraudulent transfer under applicable federal bankruptcy law and comparable
provisions of state fraudulent transfer laws. If the guarantee were void by a
court, claims in respect of the guarantee could be ranked behind all other
indebtedness of USI Atlantic, including guarantees and other contingent
liabilities. Any payment by USI Atlantic pursuant to its guarantee could be
voided and required to be returned to USI Atlantic, or to a fund for the benefit
of its creditors.
RELEASE OF USI ATLANTIC AS GUARANTOR AND USI AMERICAN HOLDINGS AS CO-ISSUER
The indenture allows the release of USI Atlantic and USI American Holdings
under certain circumstances. Following such release, only U.S. Industries will
remain obligated under the notes. This provision is intended to permit U.S.
Industries to simplify its borrowing structure in the future.
USI Atlantic will be released from its obligations under the guarantee or
USI American Holdings will be released from its obligations as co-issuer of the
notes, as the case may be, if:
(1) the obligations of the issuers under the indenture are assumed by an
acquiring or successor person other than any of our subsidiaries,
(2) USI Atlantic or USI American Holdings, as the case may be, is disposed of
in a transaction that results in USI Atlantic or USI American Holdings, as
the case may be, no longer being a subsidiary of U.S. Industries, or all
or substantially all the assets of USI Atlantic or USI American Holdings,
as the case may be, are disposed of other than to U.S. Industries or one
of its subsidiaries, or
(3) upon repayment of all amounts outstanding or, in the case of USI Atlantic,
the voluntary release of USI Atlantic under (x) the 7 1/4% Senior Notes
due 2006, (y) the Credit Facility and (z) any Debt of U.S. Industries or
any of its subsidiaries Incurred to extend, renew, refinance or refund any
part of the 7 1/4% Senior Notes due 2006 or the Credit Facility.
Immediately after any such release, we must be in compliance with the
limitation on indebtedness of Restricted Subsidiaries and the other covenants
contained in the indenture. Furthermore, as a condition to any release pursuant
to clause (3), we must certify to the trustee that immediately following any
such release:
(1) in the case of USI Atlantic, USI Atlantic will not be a guarantor of
any Restricted Subsidiary Funded Debt in excess of the amount of the
Debt Basket or
(2) in the case of USI American Holdings, USI American Holdings will not
be an obligor under any Restricted Subsidiary Funded Debt in excess of
the amount of the Debt Basket.
RANKING
The notes and the guarantees are senior unsecured obligations of the
issuers and the guarantor, respectively. The notes and the guarantees will rank
equal in right of payment to all other existing and future unsecured
indebtedness of the issuers and the guarantor, respectively, unless the holders
of such indebtedness agree to give priority to the notes and the guarantees.
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The guarantee is a senior unsecured obligation of the guarantor and ranks
equally to all other existing and future unsecured and unsubordinated
indebtedness of the guarantor and is senior in right of payment to all
subordinated indebtedness of the guarantor.
The notes and the guarantee are effectively subordinated to all existing
and future (i) secured indebtedness of the issuers and the guarantor, to the
extent of the value of the assets securing such indebtedness and (ii)
indebtedness of any subsidiaries of the issuers and of the guarantor other than
USI American Holdings.
Each of the issuers and the guarantor is a holding company that operates
through subsidiaries. Accordingly, the ability of each of the issuers and the
guarantor to pay their debts, including the notes, is dependent upon the cash
flow and ability to pay dividends of their respective subsidiaries. The issuers'
and the guarantor's rights and the rights of their respective creditors,
including holders of the notes offered by this prospectus, to receive proceeds
from the assets of any subsidiary upon such subsidiary's liquidation or
recapitalization will be subject to the prior claims of such subsidiary's
creditors. At [September 30, 1998], the total indebtedness of the subsidiaries
of U.S. Industries other than USI American Holdings and USI Atlantic was
approximately [$67 million.]
The indenture does not restrict:
(1) the Incurrence of secured or unsecured indebtedness by the issuers
or unrestricted subsidiaries of the issuers,
(2) a change in control of the issuers or the guarantor or
(3) a highly leveraged transaction involving the issuers or the
guarantor.
Restricted subsidiaries of the issuers are, however, limited in the amount of
indebtedness that may be Incurred by them. See "Certain Covenants-Limitation on
Restricted Subsidiary Funded Debt."
OPTIONAL REDEMPTION
We may redeem the notes, in whole or in part, at any time or from time to
time, on at least 30 days' prior notice by mail, at a redemption price equal to
the greater of
(1) 100% of the principal amount of the notes to be redeemed, or
(2) the sum of the present values of the remaining scheduled payments of
principal and interest on the notes discounted to the date of
redemption on a semiannual basis at the Treasury Rate plus 50 basis
points, plus, in each case, accrued but unpaid interest to the
redemption date.
On and after the redemption date, interest will cease to accrue on the notes or
portions of the notes called for redemption on such date.
In the case of any partial redemption, the trustee will select the notes
for redemption on a pro rata basis, by lot or by such other method as the
trustee in its sole discretion shall deem to be fair and appropriate. No note of
$1,000 or less in original principal amount shall be redeemed in part. If any
note is to be redeemed in part only, the notice of redemption relating to such
note shall state the portion of the principal amount of such note to be
redeemed. The holder of the redeemed note will receive a new note in principal
amount equal to the unredeemed portion of such note upon cancellation of the
original note.
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For this purpose, the following terms shall have the meaning set forth
below:
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Bank which would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the notes. "Independent Investment Bank" means one of the Reference Treasury
Dealers appointed by the trustee after consultation with the issuers.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue, expressed in each case as a percentage of its principal amount,
on the third business day preceding such redemption date, as set forth
in the daily statistical release published by the Federal Reserve Bank
of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or
(ii)if such release or a successor is not published or does not contain
such prices on such business day
(A) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or
(B) if the trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such
Quotations.
"Reference Treasury Dealer" means Credit Suisse First Boston Corporation
and its successors and/or such other primary U.S. Government securities dealers
in New York City (a "Primary Treasury Dealer") as shall be designated by the
issuers from time to time, in each case, so long as such entity continues to be
a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. EST on the
third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for such Comparable Treasury Issue expressed as
a percentage of its principal amount equal to the Comparable Treasury Price for
such redemption date.
The notice of redemption will set forth the method of calculation of the
redemption price as described in the first paragraph of this section entitled
"Optional Redemption." We will deliver to the trustee, no later than two
business days prior to the redemption date, an officers' certificate stating the
redemption price, calculated as stated in the notice of redemption.
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REDEMPTION IN CIRCUMSTANCES INVOLVING TAXATION
We may redeem any series of notes, in whole at any time, at a redemption
price equal to 100% of the principal amount of the notes plus accrued and unpaid
interest to the redemption date, if, as the result of:
(1) any change in or any amendment to the laws, including any applicable
double taxation treaty or convention, of the United Kingdom or any
Other Jurisdiction, as defined below under "-Payment of Additional
Amounts", or of any political subdivision or taxing authority of the
United Kingdom, affecting taxation, or
(2) any change in the application or interpretation of such laws, double
taxation treaty or convention,
which change or amendment becomes effective on or after the original issuance
date of the notes or, in certain circumstances, such later date on which any
assignee of the issuers, the guarantor or a successor corporation of either of
them becomes such as permitted under the indenture, it is determined, by us, the
guarantor or such assignee which terms, for purposes of the remainder of this
paragraph, include any successor thereto that
(a) the issuers, the guarantor or their respective assignees would be
required to make additional payments in respect of principal, any
premium, or interest, or
(b) based upon an opinion of independent counsel to the issuers, the
guarantor or their respective assignees, as a result of any action
taken by any taxing authority of, or any action brought in a court of
competent jurisdiction in, the United Kingdom or the Other
Jurisdiction, or any political subdivision or taxing authority of the
United Kingdom whether or not such action was taken or brought with
respect to the issuers, the guarantor or their respective assignees,
which action is taken or brought on or after the original issuance
date of the notes or, in certain circumstances, such later date on
which a corporation becomes a successor or an assignee, the
circumstances described in clause (1) would exist.
NO SINKING FUND OR COLLATERAL
We are not obligated to set aside funds or to establish a separate account
for your benefit to make the required interest and principal payments on the
registered notes.
CERTAIN COVENANTS
The indenture contains, among others, the following covenants:
LIMITATION ON LIENS. We will not, and will not permit any Restricted
Subsidiary to create, incur, assume or allow to exist any Lien (as defined) upon
any of our respective properties, assets or revenues, to secure any Debt without
making effective provision for securing the notes and, if we shall so determine,
any other Debt of either or both of the issuers which is not lesser in right of
payment to the notes:
(1) equally and ratably with or prior to such Debt as to such property or
assets for so long as such debt shall be so secured, or
(2) in the event such Debt is subordinate in right of payment to the
notes, prior to such Debt as to such property or assets for so long as
such Debt shall be so secured.
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The foregoing restrictions will not apply to Permitted Liens (as defined in the
indenture), which shall include:
(1) Liens securing only the notes or the guarantee;
(2) Liens in favor of only the issuers, the guarantor or a Restricted
Subsidiary;
(3) Liens existing on the date of the indenture;
(4) Liens on property of a Person existing at the time such Person is
merged into or consolidated with either issuer or a Restricted
Subsidiary or becomes a Restricted Subsidiary of either issuer and
not in anticipation of or in connection with such event, provided
that the Debt secured by such Lien is otherwise permitted to be
Incurred under the indenture;
(5) Liens on property existing immediately prior to the time of
acquisition of such property from a non-Affiliate and not Incurred
in anticipation of or in connection with the financing of such
acquisition, provided that the Debt secured by such Lien is
otherwise permitted to be Incurred under the indenture;
(6) Liens to secure Debt Incurred for the purpose of financing all or
any part of the purchase price or the cost of construction or
improvement of the property subject to such Liens and, in the case
of a Restricted Subsidiary all or substantially all of whose assets
consist of such property, any Lien on ownership interests or
investments in such Restricted Subsidiary Incurred in connection
with the acquisition or construction of such property, and the
Incurrence of such Debt is otherwise permitted under the indenture
and such Debt is Incurred prior to, at the time of, or within 180
days after, the acquisition of such property, the completion of such
construction or the making of such improvements;
(7) Liens on property of the issuers or any of their Restricted
Subsidiaries in favor of the United States of America or any state
of the United States, or any instrumentality of either, to secure
certain payments pursuant to any contract or statute;
(8) Liens for taxes or assessments or other governmental charges or
levies which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted or for
which a reserve or other appropriate provision, if any, as shall be
required in accordance with GAAP shall have been made;
(9) Liens to secure obligations under workmen's compensation, temporary
disability, social security, retiree health or similar laws or under
unemployment insurance;
(10) Liens Incurred to secure the performance of statutory obligations,
bids, tenders, leases, contracts other than contracts for the
repayment of Debt, surety or appeal bonds, performance or
return-of-money bonds or other obligations of a like nature Incurred
in the ordinary course of business;
(11) Judgement and attachment Liens not giving rise to a Default or Event
of Default;
(12) Any Lien arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods in the
ordinary course of business in accordance with industry practice;
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(13) Liens securing documentary letters of credit; provided such Liens
attach only to the property or goods to which such letter of credit
relates;
(14) Liens arising from filing financing statements under the Uniform
Commercial Code for precautionary purposes in connection with true
leases of personal property that are otherwise permitted under the
indenture and under which the issuers or any Restricted Subsidiary
is a lessee; or
(15) Liens to secure Debt Incurred to extend, renew, refinance or refund,
in whole or in part, Debt secured by any Lien referred to in the
foregoing clauses (1) through (14) inclusive, so long as such Lien
does not extend to any additional property other than property
attributable to improvements, alterations and repairs and the
principal amount of the Debt secured pursuant to this clause (15)
shall not exceed the principal amount of Debt so extended, renewed,
refinanced or refunded assuming all available amounts were borrowed
plus the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such
extension, renewal, refinancing or refunding at the time of such
extension, renewal, refinancing or refunding.
In addition to the foregoing, we and our Restricted Subsidiaries may incur
a Lien to secure any Debt, without securing the notes, if, after giving effect
to such Lien, the sum, without duplication, of
(1) the aggregate principal amount of all outstanding Debt secured by
Liens Incurred by us and our Restricted Subsidiaries with the
exception of secured Debt which is excluded pursuant to clauses (1)
through (15) inclusive, described above and
(2) the aggregate amount of all Attributable Debt of all sale and
leaseback transactions involving Principal Properties with the
exception of Attributable Debt excluded pursuant to clauses (1), (2)
and (3) described below under "-Limitation on Sale and Leaseback
Transactions" does not exceed 15% of Consolidated Net Tangible Assets
(the "Lien Basket"); provided, however, that the Lien Basket shall be
reduced, without duplication, by the amount of outstanding Funded Debt
Incurred from time to time pursuant to the Debt Basket (as defined
below).
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We will not, and will not
permit any Restricted Subsidiary to, enter into any sale and leaseback
transaction unless either:
(1) (A) the Attributable Debt of the issuers and their Restricted
Subsidiaries in respect of such sale and leaseback transaction
and all other sale and leaseback transactions entered into
after the date we first issued notes under the indenture other
than such sale and leaseback transactions as are permitted by
paragraph (2) or (3) below,
PLUS
(B) the aggregate principal amount of Funded Debt secured by Liens
on Principal Properties and Restricted Securities then
outstanding excluding any such Funded Debt secured by
Permitted Liens without equally and ratably securing the
notes,
would not exceed 15% of Consolidated Net Tangible Assets (the "Leaseback
Basket"); or
(2) the issuers, within 180 days after the sale or transfer, apply or
cause a Restricted Subsidiary to apply an amount equal to the greater of
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(A) the net proceeds of such sale or transfer or
(B) fair market value of the Principal Property so sold and leased
back at the time of entering into such sale and leaseback
transaction
in either case, as determined by any two of the following: the Chairman, the
President, any Vice President, the Treasurer or the Controller of each of the
issuers, to the retirement of our Debt which is senior or equal in right of
payment to the notes or Debt of a Restricted Subsidiary, having a stated
maturity more than 12 months from the date of such application or which is
extendible at the option of the obligor on such Debt to a date more than 12
months from the date of such application. Unless otherwise expressly provided
with respect to any one or more series of notes, any redemption of notes under
this provision shall not be deemed to constitute a refunding operation or
anticipated refunding operation for the purposes of any provision limiting our
right to redeem notes of any one or more such series when such redemption
involves a refunding operation or anticipated refunding operation. The amount to
be so applied shall be reduced by:
(A) the principal amount of notes delivered within 120 days after such
sale or transfer to the trustee for retirement and cancellation, and
(B) the principal amount of any such Debt of the issuers or a Restricted
Subsidiary, other than notes, voluntarily retired by us or a
Restricted Subsidiary within 120 days after such sale or transfer.
Notwithstanding the foregoing, no retirement referred to in this paragraph
(2) may be effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision; or
(3) the issuers, within 180 days prior or subsequent to such sale or
transfer, apply or cause a Restricted Subsidiary to apply an amount equal to the
net proceeds of such sale or transfer to an investment in another Principal
Property; provided, however, that this exception shall apply only if such
proceeds invested in such other Principal Property shall not exceed the total
acquisition, alteration, repair and construction cost of the issuers or any
Restricted Subsidiary in such other Principal Property less amounts secured by
any purchase money or construction mortgage on such other Principal Property.
For purposes of this covenant, a "sale and leaseback transaction" shall mean any
arrangement with any bank, insurance company or other third-party lender or
investor providing for the leasing of any Principal Property, which was or is
owned or leased by either of us or a Restricted Subsidiary and which has been or
is to be sold or transferred, more than 180 days after the completion of
construction and commencement of full operation of such Principal Property by us
to such third-party lender or investor or to any Person to whom funds have been
or are to be advanced by such lender or investor on the security of such
Principal Property.
This provision will not prohibit a lease for a temporary period not to
exceed three years, if by the end of such three-year period it is intended that
the use of such Principal Property by the lessee will be discontinued.
LIMITATION ON RESTRICTED SUBSIDIARY FUNDED DEBT. We will not permit any
Restricted Subsidiary of ours or of the guarantor to Incur any Funded Debt.
Notwithstanding the foregoing, any Restricted Subsidiary may Incur the following
Funded Debt:
(1) Funded Debt of any Restricted Subsidiary constituting Existing Funded
Debt;
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(2) Funded Debt Incurred by a Special Purpose Funding Subsidiary, provided
that such Restricted Subsidiary remains at all times a Special Purpose
Funding Subsidiary;
(3) Funded Debt owed by a Restricted Subsidiary to the guarantor, either
issuer or a Wholly-Owned Subsidiary of either of us provided that such
Funded Debt is at all times held by the guarantor, either issuer or a
Person which is a Wholly-Owned Subsidiary of either of us; provided,
however, that upon either
(A) that transfer or other disposition by the guarantor, either
issuer or such Wholly-Owned Subsidiary of any Funded Debt so
permitted to a Person other than the guarantor, either issuer or
another Wholly-Owned Subsidiary of any of us, or
(B) the issuance other than directors' qualifying shares, sale,
lease, transfer or other disposition of shares of Capital Stock
including by consolidation or merger of such Wholly-Owned Subsidiary
to a Person other than the guarantor, either issuer or another such
Wholly-Owned Subsidiary, the provisions of this clause (3) shall no
longer be applicable to such Funded Debt and such Funded Debt shall
be deemed to have been Incurred at the time of such transfer or
other disposition;
(4) Funded Debt Incurred by a Person before such Person became a
Restricted Subsidiary in an acquisition by either of or both of us
from a non-Affiliate whether through a stock acquisition, merger,
consolidation or otherwise after the date of the indenture provided
such Funded Debt was not Incurred in anticipation of or in connection
with and was outstanding prior to such acquisition;
(5) Funded Debt Incurred in connection with the acquisition, purchase,
improvement or development of property or assets used or held by any
Subsidiary of either issuer prior to, or within 180 days after, the
time of such acquisition, purchase, improvement or development;
(6) Funded Debt Incurred to extend, renew, refinance or refund in whole or
in part, of any Funded Debt referred to in the foregoing clauses (1),
(4) and (5), provided that the principal amount of the Funded Debt
Incurred pursuant to this clause (6) shall not exceed the principal
amount of Funded Debt so extended, renewed, refinanced or refunded,
plus the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such
extension, renewal, refinancing or refunding at the time of such
extension, renewal, refinancing or refunding; and
(7) Funded Debt not otherwise permitted under the foregoing exceptions in
an aggregate principal amount which, when aggregated with all other
Funded Debt not otherwise permitted under the foregoing exceptions of
all of our Restricted Subsidiaries then outstanding does not exceed
15% of Consolidated Net Tangible Assets (the "Debt Basket"); provided,
however, that the Debt Basket shall be reduced, without duplication,
by the amount of Debt secured by the Lien Basket and by the amount of
Attributable Debt Incurred pursuant to the Leaseback Basket, in each
case to the extent such secured Debt and such Attributable Debt may
from time to time be outstanding.
APPLICABILITY OF COVENANTS. The covenants described in this prospectus
apply to the notes. The indenture provides, however, that the covenants
applicable to future issuances of securities under the indenture may have
covenants similar or different from those set forth in this prospectus.
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EVENTS OF DEFAULT
The indenture provides that the following are Events of Default with
respect to any series of notes offered under the indenture:
(1) default in the payment of any interest on the notes of such series, or
any related coupon, when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of or premium, if any, on the
notes of such series at their maturity and continuance of such default for a
period of five business days;
(3) default in the performance, or breach, of any covenant or agreement of
the issuers or the guarantor in the indenture which affects or is applicable to
the notes of such series other than a default in the performance, or breach of a
covenant or agreement which is specifically dealt with elsewhere, and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the issuers or the guarantor, as
the case may be, by the trustee or to the issuers or the guarantor and the
trustee for such series of notes by the holders of at least 25% in principal
amount of all Outstanding notes of such series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" under the indenture;
(4) an event of default shall have occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing any Debt of either of us
or any Restricted Subsidiary of either of us, which Debt is outstanding in a
principal amount in excess of $25,000,000 in the aggregate, and such default
shall result in such Debt becoming, whether by declaration or otherwise, due and
payable prior to the date on which it would otherwise become due and payable or
a default in any payment when due at final maturity of any such Debt;
(5) any Person entitled to take the actions described in this section,
after the occurrence of any event of default under any agreement or instrument
evidencing any Debt in excess of $25,000,000 in the aggregate of either of us or
any Restricted Subsidiary of ours, shall commence judicial proceedings to
foreclose upon our assets or assets of any of our subsidiaries having an
aggregate value in excess of $25,000,000, or shall have exercised any right
under applicable law or applicable security documents to take ownership of such
assets in lieu of foreclosure;
(6) final judgments or orders rendered against either of us or any
Restricted Subsidiary which require the payment in money, either individually or
in an aggregate amount, that is more than $25,000,000 and either
(a) an enforcement proceeding shall have been commenced by any
creditor upon such judgment or order or
(b) there shall have been a period of 60 days during which a stay of
enforcement of such judgment or order, by reason of pending appeal or
otherwise, was not in effect;
(7) the entry of a decree or order by a court having jurisdiction in the
premises adjudging either of us or the guarantor as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of either of us or the guarantor
under the Federal Bankruptcy Code or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of either of us or the guarantor or of any
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substantial part of our respective properties, or ordering the winding up or
liquidation of our affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days;
(8) the institution by either of us or the guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by any of us to the
institution of bankruptcy or insolvency proceedings against us, or the filing by
any of us of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable federal or state law,
or the consent by any of us to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of either of us or the guarantor or of any substantial part of
our respective properties, or the making by any of us of an assignment for the
benefit of creditors, or the admission by any of us in writing of our inability
to pay our debts generally as they become due; and
(9) the guarantee ceases to be in full force and effect or is declared
null and void or the guarantor denies that it has any further liability under
the guarantee, or gives notice to such effect other than by reason of the
termination of the indenture or the release of the guarantee in accordance with
the indenture.
The indenture provides that if an Event of Default for any series of notes
specified above other than an Event of Default of the type described in clauses
(7) and (8) above shall occur and be continuing, either the trustee or the
holders of at least 25% in principal amount of the Outstanding notes of such
series may declare the principal of all notes of such series to be due and
payable immediately.
If an Event of Default specified in clause (7) or (8) above shall occur
and be continuing, then the principal of all of the notes shall be due and
payable immediately without any declaration or other act on the part of the
trustee or any holder.
In certain cases, the holders of a majority in principal amount of the
Outstanding notes of any series may on behalf of the holders of all notes of
such series rescind and annul a declaration of acceleration.
The indenture provides that the trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by the
indenture. No holder of notes of any series may institute any proceedings,
judicial or otherwise, to enforce the indenture except in the case of failure of
the trustee, for 60 days, to act after it has received a request to enforce such
indenture by the Holders of at least 25% in aggregate principal amount of the
then Outstanding notes of such series in the case of an Event of Default other
than the type described in clauses (7) and (8) above or a request to enforce
such indenture by the holders of at least 25% in aggregate principal amount of
all of the notes then Outstanding in the case of an Event of Default specified
in clauses (7) and (8) above, and an offer of reasonable indemnity.
This provision will not prevent any holder of notes from enforcing payment
of the principal on the notes and any premium and interest on the notes at the
respective due dates. The holders of a majority in aggregate principal amount of
the notes of any series then outstanding may direct the time, method and place
of conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on it with respect to the notes of such
series.
The trustee may, however, refuse to follow any direction that it
determines may not lawfully be taken or would be illegal or in conflict with the
indenture or involve it in personal liability or which would be unjustly
prejudicial to holders not joining therein.
The indenture provides that the trustee will, within 90 days after the
occurrence of a default with respect to the notes of any series, give to the
holders of notes of such series notice of such default, if such
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default has not been cured or waived. Except in the case of a default in the
payment of principal of or any premium or interest on, or in the payment of any
sinking fund installment in respect of, any note, the trustee shall be protected
in withholding such notice if it determines in good faith that the withholding
of such notice is in the interest of the holders of the notes.
We will be required to file with the trustee annually an officers'
certificate as to compliance with all conditions and covenants under the terms
of the indenture.
MODIFICATION AND WAIVER
Subject to certain exceptions, we, along with the guarantor and the
trustee, may amend the indenture, including the guarantee, only with the consent
of the holders of a majority in principal amount of the outstanding notes of
each series affected by such modification or amendment. However, no such
modification or amendment may, without the consent of the holder of each
outstanding note affected thereby:
(1) change the stated maturity of the principal of or any premium or any
installment of interest on any note, or reduce the principal amount of any note
or any premium or the rate of any interest on any note, or change any obligation
of the issuers to pay additional amounts contemplated by the indenture, with
limited exceptions, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the maturity of the note or the amount thereof provable in
bankruptcy; or
(2) adversely affect any right of repayment at the option of any holder of
notes, or change any place of payment where or the currency in which the notes
or any premium or interest on the notes is payable;
(3) impair the right to institute suit for the enforcement of any such
payment on or after the stated maturity of the notes or, in the case of
redemption or repayment at the option of the holder, on or after the redemption
date or repayment date, as the case may be;
(4) adversely affect any right to exchange any note provided pursuant to
the indenture;
(5) reduce the percentage in principal amount of the outstanding notes of
any series, the consent of whose holders is required for any supplemental
indenture, for any waiver of compliance with certain provisions of the indenture
which affect the notes or certain defaults applicable to the notes and their
consequences provided for in the indenture;
(6) reduce the requirements of under the indenture for quorum or voting
with respect to any series of notes;
(7) modify any of the provisions of Sections 902, 513 or 1011 of the
indenture, except to increase any such percentage or to provide that certain
other provisions of the indenture which affect the notes cannot be modified or
waived without the consent of the holder of each outstanding note affected
thereby;
(8) modify the ranking or priority of any series of notes or the
guarantee; or
(9) release the guarantor from any of its obligations under the guarantee
or the indenture other than in accordance with the terms of the indenture.
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We, along with the guarantor and trustee, may amend the indenture without
the consent of any holder of notes, to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor corporation of the
obligations of the issuers or the guarantor under the indenture;
(3) add guarantees or collateral security with respect to the notes;
(4) add to the covenants of the issuers for the benefit of the holders or
to surrender any right or power conferred upon the issuers or the guarantor;
(5) make any change that does not adversely affect the rights of any
holder; or
(6) comply with any requirement of the SEC in connection with the
qualification of the indenture under the Trust Indenture Act of 1939.
We may, with respect to any series of notes, choose in certain particular
instances not to comply with any term, provision or condition which affects the
notes of such series set forth in the indenture if the holders of at least a
majority in principal amount of the notes of each series affected by such term,
provision or condition, by act of such holders, waive such compliance in such
instance with such term, provision or condition. No such waiver shall extend to
or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, our obligations and the
duties of the trustee to holders of notes of each series in respect of any such
term, provision or condition shall remain in full force and effect. The holders
of:
o a majority in principal amount of the outstanding notes of any series
in the case of an Event of Default specified in (1), (2), (3) or (6)
in "-Events of Default," above
o or of all then outstanding notes in the case of an Event of
Default specified in (4) or (5) in "-Events of Default," above
may, on behalf of all such holders, waive any past default under the indenture
with respect to such notes except a default in the payment of the principal of
or any premium or any interest on the notes and except a default in respect of a
covenant or provision the modification or amendment of which would require the
consent of the holder of each outstanding note of each series affected thereby.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Pursuant to the indenture, we may not enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve, or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of our
respective property, business or assets, except:
(1) any subsidiary of either of the issuers may be merged or consolidated
with or into either of the issuers if the respective issuer is the continuing or
surviving corporation, or with or into any one or more wholly-owned subsidiaries
of issuer if the wholly-owned subsidiary or subsidiaries is the continuing or
surviving corporation;
(2) the issuers or any wholly-owned subsidiary of the issuers may sell,
lease, transfer or otherwise dispose of any or all of their assets upon
voluntary liquidation or otherwise to either of the issuers or any
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other wholly-owned subsidiary of the issuers or may sell, lease, transfer or
otherwise dispose of any or all of their assets upon voluntary liquidation or
otherwise to any non-wholly-owned subsidiary of the issuers for fair market
value;
(3) any non-wholly-owned subsidiary of the issuers may sell, lease,
transfer or otherwise dispose of any or all of its assets upon voluntary
liquidation or otherwise to the issuers or any wholly-owned subsidiary of the
issuers for fair market value or may sell, lease, transfer or otherwise dispose
of any or all of its assets upon voluntary liquidation or otherwise to any other
non-wholly-owned subsidiary of the issuers; and
(4) the issuers or any subsidiary of either of the issuers may be merged
or consolidated with or into another entity;
provided that no Default or Event of Default shall have occurred and be
continuing or would occur as a result thereof; and provided further that if the
issuers shall not be the continuing or surviving corporation, such continuing or
surviving corporation shall succeed to the indenture.
The indenture also provides that the guarantor shall not consolidate with
or merge with or into any other entity or convey, sell, assign, transfer, lease
or otherwise dispose of its properties and assets substantially as an entirety
to any other entity other than any of the issuers unless:
(1) the entity formed by or surviving such consolidation or merger if
other than the guarantor or to which such properties and assets are transferred
assumes all of the obligations of such guarantor under the indenture and the
guarantee, pursuant to a supplemental indenture in form and substance
satisfactory to the trustee;
(2) immediately after giving effect to such transaction, no Default or
Event of Default has occurred and is continuing; and
(3) the guarantor delivers, or causes to be delivered, to the trustee, in
form and substance reasonably satisfactory to the trustee, an officers'
certificate and an opinion of counsel, each stating that such transaction
complies with the requirements of the indenture.
PAYMENT OF ADDITIONAL AMOUNTS
The indenture provides that any amounts paid by the issuers or their
assignee or any successor thereto or paid by any successor to the issuers will
be paid without deduction for taxes collected for the account of the United
Kingdom or the jurisdiction of incorporation or residence other than the United
States of any assignee of the issuers or any successor to either issuer or the
guarantor (an "Other Jurisdiction") or, if deduction of taxes shall at any time
be required by the United Kingdom or an Other Jurisdiction, the issuers, their
assignee or any relevant successor will pay such additional amounts ("Additional
Amounts") in respect of principal, premium or interest as may be necessary in
order that the net amounts paid to the holders of the notes or the trustee under
the indenture, after such deduction, shall equal the respective amounts of
principal, premium or interest as specified in the notes to which such holders
or the trustee are entitled; provided, however, that the foregoing shall not
apply to
(1) any taxes which would not have been so imposed but for the fact that
the holder or beneficial owner of the relevant note is or has been a
domiciliary, national or resident of, has been engaged in business, has
maintained a permanent establishment, or is or has been physically present in,
the United Kingdom or the Other Jurisdiction, or otherwise has or has had some
connection with the United Kingdom
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or the Other Jurisdiction other than the holding or ownership of a note, or the
collection of principal of, premium and interest on, or the enforcement of, a
note or the guarantee,
(2) any taxes which would not have been so imposed but for the fact that
the relevant note was presented more than thirty days after the date such
payment became due or was provided for, whichever is later,
(3) any taxes charges which are payable otherwise than by deduction or
withholding on or in respect of the relevant note or guarantee,
(4) any taxes which would not have been so imposed but for the holders
failure to comply with any reporting requirements concerning the nationality,
residence, identity or connection with the United Kingdom or the Other
Jurisdiction or any other relevant jurisdiction of the holder or beneficial
owner of the relevant note,
(5) any taxes (A) which would not have been so imposed if the beneficial
owner of the relevant note had been the holder of such note, or (B) which, if
the beneficial owner of such note had held the note as the holder of such note,
would have been excluded pursuant to clauses (1) through (4) above, or
(6) any estate, inheritance, gift, sale, transfer, personal property or
similar tax.
The indenture does not provide for the payment of additional amounts with
respect to the indenture or the guarantee due to any deduction requirement
imposed by any governmental unit other than the United Kingdom or an Other
Jurisdiction.
DEFEASANCE
With respect to any series of notes, we, at our option:
(1) will be discharged from any and all obligations in respect of such
series of notes except for certain obligations to replace stolen, lost or
mutilated notes, maintain paying agencies, and hold money for payment in trust;
or
(2) will not be subject to certain covenants in the indenture and any
other specified covenants with respect to such series of notes, in each case if
the issuers deposit with the trustee, in trust, money or Government Obligations
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all the principal including any mandatory sinking fund payments of, and interest
on, the outstanding notes of the relevant series on the dates such payments are
due in accordance with the terms thereof.
To exercise any such option, we are required to deliver to the trustee the
following:
(1) an opinion of counsel to the effect that the deposit and related
defeasance would not cause the holders of the notes of such series to recognize
income, gain or loss for federal income tax purposes;
(2) in the case of a discharge pursuant to clause (1) above, either a
ruling to the effect specified in this clause (2) received from or published by
the United States Internal Revenue Service or an opinion that there has been a
change in applicable federal income tax law to such effect; and
(3) an officer's certificate stating that no Event of Default with respect
to such series of notes has occurred and is continuing.
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BOOK-ENTRY; DELIVERY AND FORM
GENERAL. Except as set forth below, the notes will be represented by one
or more fully registered global notes in book-entry form (each, a "global
note"). Each global note will be deposited with the trustee, as custodian for,
and registered in the name of a DTC or nominee of DTC. The old notes to the
extent validly tendered and accepted and directed by their holders in their
letters of transmittal, will be exchanged through book-entry electronic transfer
for the global note.
Notes that are issued as described below under "-Physical Notes" will be
issued in certificated form. Upon the transfer of a note of any series in
certificated form, such note will be exchanged for an interest in a global note
representing the principal amount of notes being transferred, unless the global
notes for such series have previously been exchanged for notes in certificated
form.
The Global Notes. We expect that pursuant to procedures established by DTC
(1) upon deposit of the global notes, DTC or its custodian will
credit, on its internal system, the principal amount of the individual
beneficial interests represented by the global notes to the respective
accounts of persons who have accounts with DTC and
(2) ownership of beneficial interests in the global notes will be
shown on, and the transfer of such ownership will be effected only
through:
o records maintained by DTC or its nominee with respect to interests of
persons who have accounts with DTC ("participants") and
o the records of participants with respect to interests of persons other
than participants.
So long as DTC, or its nominee, is the registered owner or holder of the
global notes, DTC or such nominee, as the case may be, will be considered the
sole record owner or holder of the notes represented by the global notes for all
purposes under the indenture. No beneficial owner of an interest in the global
notes will be able to transfer such interest except in accordance with DTC's
procedures, in addition to those provided for under the indenture.
We will make payments of the principal of, or premium and interest on, the
global notes to DTC or its nominee, as the registered owner of the global notes.
None of the issuers, the trustee or any paying agent under the indenture will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the global
notes or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
We expect that DTC or its nominee, upon receipt of any payment of the
principal of, or premium and interest on, the global notes, will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the global notes as
shown on the records of DTC or its nominee. We also expect that payments by
participants to owners of beneficial interests in the global notes held through
such participants will be governed by standing instructions and customary
practice as is now the case with securities held for the accounts of customers
registered in the names of nominees for such customers. Such payments will be
the responsibility of such participants.
Transfers between participants in DTC will be effected in accordance with
DTC rules and will be settled in immediately available funds. If a holder
requires physical delivery of the notes for any reason, including to sell notes
to persons in states which require physical delivery of the notes, or to pledge
such
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securities, such holder must transfer its interest in the global notes in
accordance with the normal procedures of DTC and in accordance with the
procedures set forth in the indenture.
DTC has advised the issuers and the guarantor that DTC will take any
action permitted to be taken by a holder of notes only at the direction of one
or more participants to whose account interests in the global notes are credited
and only in respect of the aggregate principal amount of notes as to which such
participant has given such direction. However, if there is an Event of Default
under the indenture, DTC will exchange the global notes for physical notes,
which it will distribute to its participants.
DTC has advised the issuers and the guarantor as follows:
(1) DTC is a limited purpose trust company organized under the laws of
the State of New York,
(2) a member of the Federal Reserve System,
(3) a "clearing corporation" within the meaning of the Uniform
Commercial Code and
(4) a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act.
DTC was created to hold securities for its participants and facilitate the
clearance and settlement of securities transactions between participants through
electronic book-entry changes in accounts of its participants, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing corporations
and certain other organizations. Indirect access to the DTC system is available
to others such as banks, brokers, dealers and trust companies and clear through
or maintain a custodial relationship with a participant, either directly or
indirectly ("indirect participants").
Although DTC and its participants are expected to follow the foregoing
procedures in order to facilitate transfers of interests in the global notes
among participants, they are under no obligation to perform such procedures, and
such procedures may be discontinued at any time. Neither the issuers nor the
trustee will have any responsibility for the performance by DTC or its
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations.
Physical Notes. Interests in the global notes will be exchangeable or
transferable, as the case may be, for notes issued in certificated, registered
form without coupons ("physical notes") if:
(1) DTC notifies us that it is unwilling or unable to continue as
depositary for such global notes, or DTC ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not
appointed by us within 90 days, or
(2) we, in our discretion, at any time determine not to have all of
the notes represented by a global note or
(3) an Event of Default has occurred and holders of more than 25%
aggregate principal amount of the notes at the time outstanding
represented by global notes advise the trustee through DTC or a successor
depositary in writing that the continuation of a book-entry system through
DTC or such depositary with respect to the global notes is no longer
required.
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Upon the occurrence of any of the above events, we will cause the appropriate
physical notes to be delivered.
THE TRUSTEE
The indenture provides that, except during the continuance of an Event of
Default, the trustee will perform only such duties as are specifically set forth
in the indenture. If an Event of Default has occurred and is continuing, the
trustee will exercise such rights and powers vested in it under the indenture
and use the same degree of care and skill in its exercise as a prudent person
would exercise under the circumstances in the conduct of such person's own
affairs.
If the trustee becomes a creditor of any issuer or the guarantor, the
indenture and provisions of the Trust Indenture Act of 1939 incorporated by
reference in the indenture limit the trustee's rights to obtain payment of
claims in certain cases or, to realize on certain property received by it in
respect of any such claims, as security or otherwise. The trustee is permitted
to engage in other transactions; however, if it acquires any conflicting
interest it must eliminate such conflict or resign.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the notes will be made in immediately available funds. All
payments of principal, any premium, and interest will be made by the issuers in
immediately available funds.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the issuers
or the guarantor shall have any liability for any obligations of the issuers or
the guarantor under the guarantee, any series of notes or the indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder of notes by accepting a note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the notes and the guarantee. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC that
such waiver is against public policy.
TRANSFER
The notes will be issued in registered form and will be transferable only
upon the surrender of the notes being transferred for registration of transfer.
The issuer may require payment of a sum sufficient to cover any tax, assessment
or other governmental charge payable in connection with certain transfers and
exchanges.
GOVERNING LAW
The indenture provides that it and the notes will be governed by, and
construed in accordance with, the laws of the State of New York to the extent
that the application of the law of another jurisdiction would not otherwise be
required.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the indenture. Reference
is made to the indenture for a full disclosure of all such terms, as well as any
other terms used in this prospectus for which no definition is provided.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have correlative meanings.
"Attributable Debt" means, as to any particular lease under which either
of the issuers or any Restricted Subsidiary is at the time liable for a term of
more than 12 months, at any date as of which the amount of the debt under the
lease is to be determined, the total net amount of rent required to be paid by
either the issuers or any Restricted Subsidiary under such lease during the
remaining term of the lease (excluding any subsequent renewal or other extension
options held by the lessee), discounted from the respective due dates of such
rent to such date at the rate per annum equivalent to the interest rate inherent
in such lease. The net amount of rent required to be paid under any such lease
for any such period shall be:
o the aggregate amount of the rent payable by the lessee with respect
to such period EXCLUDING
o amounts required to be paid on account of maintenance and repairs,
services, insurance, taxes, assessments, water rates and similar
charges and contingent rents.
In the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount of rent shall include the lesser of
(1) the total discounted net amount of rent required to be paid from the
later of the first date upon which such lease may be so terminated or the date
of the determination of such net amount of rent, as the case may be, and
(2) the amount of such penalty in which event no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Consolidated Net Tangible Assets" means the total amount of assets
appearing on our most recent Consolidated balance sheet of, prepared in
accordance with GAAP after deducting from such assets
(1) all current liabilities excluding any current liabilities which are by
their terms extendible or renewable at the option of the obligor on such
liabilities to a time more than 12 months after the time as of which the amount
of such liabilities is being computed and
(2) all goodwill, trade names, trademarks, patents, unamortized debt
discount less unamortized premium and expense and other like intangibles.
"Consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Credit Facility" means the Credit Agreement, dated as of December 12,
1996, among USI American Holdings, Inc., USI Funding, Inc., as borrowers, U.S.
Industries, as guarantor, Bank of America Illinois, as Issuing Bank and
Swingline Bank, the additional financial institutions set forth in that
agreement, as lenders, Bank of America National Trust and Savings Association,
as Agent, and BA
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Securities, Inc., as Arranger, as such agreement may be amended from time to
time or any one or more renewals, extension, refinancings, or refundings of such
facility.
"Debt" means (without duplication) indebtedness for borrowed money
evidenced by notes, bonds, debentures or other similar instruments, and any
contingent or other obligations arising under any guarantee or similar
instrument with respect to such debt.
"Debt Basket" shall have the meaning set forth in the "Limitation on Sale
and Leaseback Transactions" covenant.
"Depository Trust Company" or "DTC" means The Depository Trust Company,
its nominees, and their respective successors.
"Existing Funded Debt" means all Funded Debt other than Funded Debt
outstanding pursuant to the Credit Facility existing on the date of the
indenture.
"Funded Debt" means Debt that by its terms
(1) matures more than one year from the date of original issuance or
creation or
(2) matures within one year from such date but is renewable or extendible
at the option of any obligor to a date more than one year from such date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession
in the United States, from time to time.
"Government Obligations" means securities which are:
(1) direct obligations of the government which issued the Currency in
which the notes are payable; or
(2) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government which issued the Currency in which
the notes are payable, the payment of which is unconditionally guaranteed by
such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer of such obligations and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"Guarantee" means the unconditional guarantee by the guarantor, pursuant
to Article 12 of the indenture, which is subject to release under certain
circumstances as described herein.
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"Incur" means, with respect to any Debt of any Person, to create, issue,
incur by conversion, exchange or otherwise, assume, guarantee or otherwise
become, directly or indirectly, liable in respect of such Debt or the recording,
as required pursuant to GAAP or otherwise, of any such Debt on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall
have correlative meanings); provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time becoming Debt
shall not be deemed an Incurrence of such Debt.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or security
interest.
"Lien Basket" shall have the meaning set forth in the "Limitation on
Liens" covenant.
"Maturity", when used with respect to any note, means the date on which
the principal of such note or an installment of principal becomes due and
payable as provided in such note or the indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Original Issue Date" means October 27, 1998, the date on which the notes
were originally issued.
"Original Issue Discount Security" means any note which provides for an
amount less than the principal amount of such note to be due and payable upon a
declaration of acceleration of the Maturity of such note pursuant to Section 502
of the indenture.
"Paying Agent" means any Person authorized by the issuers to pay the
principal of or any premium or any interest, on any notes on behalf of the
issuers.
"Place of Payment" means New York City, New York.
"Principal Property" means any manufacturing plant or warehouse, together
with the land upon which it is erected and fixtures comprising a part of such
plant or warehouse, owned by either of the issuers or any Restricted Subsidiary
and located in the United States, the gross book value without deduction of any
reserve for depreciation of which on the date as of which the determination is
being made is an amount which exceeds 1% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or warehouse or any portion of such
plant or warehouse together with the land upon which it is erected and fixtures
comprising a part of such plant or warehouse which, in the opinion of the Board
of Directors, is not of material importance to the total business conducted by
the issuers and their subsidiaries, taken as a whole.
"Restricted Subsidiary" means each subsidiary other than Unrestricted
Subsidiaries.
"Special Purpose Funding Subsidiary" means a direct Wholly-Owned
Subsidiary of either of the issuers:
(1) that serves as a cash management company for either of the issuers and
its respective subsidiaries and has no other material operations or business,
(2) that for every transfer of funds to it, records a corresponding
liability on its books and records to the transferor of such funds, and
(3) whose assets do not materially exceed its liabilities.
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"Stated Maturity", when used with respect to any note or any installment
of principal of such note or interest on such note, means the date specified in
such note as the fixed date on which the principal of such note or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308 of the indenture.
"Trustee" means The First National Bank of Chicago until a successor
trustee shall have become such pursuant to the applicable provisions of the
indenture, and thereafter "trustee" shall mean or include each Person who is
then a trustee under the indenture.
"Unrestricted Subsidiary" means any subsidiary of either of the issuers
that:
(1) is organized under the laws of a jurisdiction other than a
jurisdiction in the United States of America,
(2) does not constitute a "significant subsidiary" of U.S. Industries
within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the
Exchange Act or any successor provision or
(3) in the case of USI Atlantic and USI American Holdings, is or is acting
as a co-issuer or guarantor of any indebtedness of U.S. Industries that is pari
passu in right of payment with the indebtedness under the notes.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion of taxation intended as a summary of
the material income tax consequences generally applicable to the exchange offer.
The statements of United States tax law set forth below are based on the laws,
regulations and administrative and judicial decisions applicable as of the date
of this prospectus, and are subject to any changes in relevant United States
authorities occurring after that date. Any such changes, which could be
retroactive, could affect the continuing validity of this discussion.
Persons considering the exchange of old notes for registered notes in the
exchange offer should consult their own tax advisors concerning the application
of United States federal income tax laws, as well as the laws of any state,
local, or other taxing jurisdiction applicable to their particular situations.
UNITED STATES FEDERAL INCOME TAXATION
The exchange of the old notes for registered notes in the exchange offer
will not be a taxable exchange for U.S. federal income tax purposes. As a
result, there will be no federal income tax consequences to a holder exchanging
an old note for a registered note in the exchange offer. A holder should have
the same adjusted basis and holding period in the registered notes as it had in
the old note immediately before the exchange.
The preceding paragraph summarizes certain of the material U.S. federal
income tax consequences associated with the exchange of the old notes for
registered notes in the exchange offer. This summary applies only to those
persons who are the initial holders of old notes, who acquired old notes for
cash and who hold old notes as capital assets, and assumes that the old notes
were not issued with "original issue discount," as defined in the Internal
Revenue Code of 1986. This summary also does not address the U.S. federal income
tax consequences of the exchange of notes not held as capital assets within the
meaning of Section 1221 of the Code, or the U.S. federal income tax consequences
to investors subject to special treatment under the U.S. federal income tax
laws, such as dealers in securities or foreign currency, tax-exempt entities,
banks, thrifts, insurance companies, persons that hold the notes as part of a
"straddle", a "hedge" against currency risk or a "conversion transaction",
persons that have a "functional currency" other than the U.S. dollar and
investors in pass-through entities. It also does not address any consequences
arising under U.S. federal gift and estate taxes or under the tax laws of any
state, local or foreign jurisdiction.
UNITED KINGDOM INCOME TAXATION
Payments of principal and interest on a registered notes by USI Atlantic
under the guarantee received by a beneficial owner not otherwise taxable in the
United Kingdom will generally be exempt from United Kingdom tax. However, USI
Atlantic's understanding of current Inland Revenue practice is that where a
United Kingdom company, including a company considered to be a United Kingdom
"dual resident" for tax purposes such as USI Atlantic, is obliged to make a
payment of interest under a guarantee which in default would be enforced in the
United Kingdom, that payment will have a United Kingdom source. Accordingly, the
payment will be subject to United Kingdom withholding tax in the absence of an
available exemption under an applicable double taxation treaty or convention.
Such an exemption should be available under the double taxation treaty between
the United States and the United Kingdom to beneficial owners of registered
notes who timely satisfy the conditions for exemption therein and who comply
with the relevant administrative arrangements. If, however, an exemption is not
available and a United Kingdom withholding tax is imposed on a payment in
respect of interest or any additional interest under the guarantee, subject to
the exceptions set forth above under "Description of the Registered
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Notes--Payment of Additional Amounts," the issuers or the guarantor or their
successors or assigns, will be obligated to pay or cause to be paid such
Additional Amounts in respect of the relevant interest as may be necessary in
order that the net amount of interest paid to a holder of a registered note
shall equal the amount of interest to which such holder is entitled. If the
issuers or the guarantor are required to pay Additional Amounts by reason of
current Inland Revenue practice, the issuers may redeem the notes in accordance
with the provisions described under "Description of the Registered
Notes-Redemption in Circumstances Involving Taxation."
Beneficial owners of registered notes should consult their own tax
advisors as to the conditions for exemption and the relevant administrative
arrangements.
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NOTICE TO CANADIAN RESIDENTS
RESALE RESTRICTIONS
The distribution of the notes in Canada is being made only on a private
placement basis exempt from the requirement that the issuers prepare and file a
prospectus with the securities regulatory authorities in each province where
trades of notes are effected. Accordingly, any resale of the notes in Canada
must be made in accordance with applicable securities laws which will vary
depending on the relevant jurisdiction, and which may require resales to be made
in accordance with available statutory exemptions or pursuant to a discretionary
exemption granted by the applicable Canadian securities regulatory authority.
Purchasers are advised to seek legal advice prior to any resale of the notes.
REPRESENTATIONS OF PURCHASERS
Each purchaser of notes in Canada who receives a purchase confirmation
will be deemed to represent to the issuers and the dealer from whom such
purchase confirmation is received that:
(1) such purchaser is entitled under applicable provincial securities laws
to purchase such notes without the benefit of a prospectus qualified under such
securities laws,
(2) where required by law, such purchaser is purchasing as principal and
not as agent and
(3) such purchaser has reviewed the text above under "-Resale
Restrictions."
RIGHTS OF ACTION (ONTARIO PURCHASERS)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
section 32 of the Regulation under the Securities Act (Ontario). As a result,
Ontario purchasers must rely on other remedies that may be available, including
common law rights of action for damages or rescission or rights of action under
the civil liability provisions of the U.S. federal securities laws. Following a
decision of the U.S. Supreme Court, it is possible that Ontario purchasers will
not be able to rely upon the remedies set out in Section 12(2) of the United
States Securities Act of 1933 where securities are being offered under a U.S.
private placement memorandum such as this document.
ENFORCEMENT OF LEGAL RIGHTS
All of the issuers' directors and officers as well as the experts named in
this prospectus may be located outside of Canada and, as a result, it may not be
possible for Canadian purchasers to effect service of process within Canada upon
the issuer or such persons. All or a substantial portion of the assets of the
issuer and such persons may be located outside of Canada and, as a result, it
may not be possible to satisfy a judgment against the issuer or such persons in
Canada or to enforce a judgment obtained in Canadian courts against the issuer
or persons outside of Canada.
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NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of notes to whom the Securities Act (British Columbia) applies
is advised that such purchaser is required to file with the British Columbia
Securities Commission a report within ten days of the sale of any notes acquired
by such purchaser pursuant to this Offering. Such report must be in the form
attached to British Columbia Securities Commission Blanket Order BOR #95/17, a
copy of which may be obtained from the issuers. Only one such report must be
filed in respect of notes acquired on the same date and under the same
prospectus exemption.
TAXATION AND ELIGIBILITY FOR INVESTMENT
Canadian purchasers of notes should consult their own legal and tax
advisors with respect to the tax consequences of an investment in the notes in
their particular circumstances and with respect to the eligibility of the notes
for investment by the purchaser under relevant Canadian legislation.
48
<PAGE>
LEGAL MATTERS
The validity of the registered notes and the registered guarantees have
been passed upon for U.S. Industries, USI Atlantic and USI American Holdings by
Weil, Gotshal & Manges LLP, New York, New York.
EXPERTS
The consolidated financial statements and schedule of U.S. Industries.
appearing in its Annual Report on Form 10-K for the year ended October 3, 1998,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated in this prospectus by
reference. Their report as to the years ended September 30, 1997 and 1996, is
based in part on the report of PricewaterhouseCoopers LLP. Such consolidated
financial statements and schedule are incorporated in this prospectus by
reference in reliance upon such report given upon the authority of such firms as
experts in accounting and auditing.
49
<PAGE>
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
USI ATLANTIC CORP.
$250,000,000
71/8% Senior Notes due 2003
PROSPECTUS
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED
IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT OFFER TO SELL OR BUY ANY SECURITIES
IN ANY JURISDICTION WHERE IT IS UNLAWFUL.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The issuers and the guarantor are Delaware corporations. Section 145 of the
Delaware General Corporation Law (the "DGCL") provides that a Delaware
corporation has the power to indemnify its officers and directors in certain
circumstances.
Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify
any director or officer, or former director or officer, who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of his
service as director, officer, employee or agent of the corporation, or his
service, at the corporation's request, as a director, officer, employee or agent
of another corporation or enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer 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, provided that such director or officer had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer 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 director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) or (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; provided
that indemnification provided for by Section 145 or granted pursuant thereto
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and
II-1
<PAGE>
empowers the corporation to purchase and maintain insurance on behalf of a
director of officer of the corporation against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
In addition, Section 102(b)(7) of the DGCL permits Delaware corporations to
include a provision in their certificates of incorporation 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 provisions 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 that
involved intentional misconduct or a knowing violation of law, (iii) for
unlawful payment of dividends or other unlawful distributions, or (iv) for any
transactions from which the director derived an improper personal benefit.
Each of the issuers' and the guarantor's Certificates of Incorporation
currently provide that each Director shall not be personally liable to each
respective corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director and require each respective corporation to
indemnify its directors and officers to the fullest extent permitted by the
DGCL.
The By-Laws of each of the issuers provide that the issuers shall, and the
By-Laws of the guarantor provide that the guarantor may, provide to any director
or officer advances for expenses incurred in defending an action, suit or
proceeding brought against such person because of his or her status as an
officer or director upon receipt of an undertaking to repay such advances unless
it is ultimately determined that he or she is entitled to indemnification by the
respective corporation.
The directors and officers of each of the issuers and the guarantor are
insured against certain civil liabilities, including liabilities under federal
securities laws, which might be incurred by them in such capacity.
ITEM 21. EXHIBIT AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
Exhibit No. Description of Document
----------- -----------------------
3.1(a) Amended and Restated Certificate of Incorporation of USI
(filed as Exhibit 3.1 to the Form 10-K).*
3.1(b) Certificate of Incorporation of USI American Holdings (filed
as Exhibit 3.1(a) to the Registration Statement on Form S-4 of
USI American Holdings (Registration No. 333-20183 (the "USIAH
Form S-4")).*
3.1(c) Amended and Restated Certificate of Incorporation of USI
Atlantic.***
II-2
<PAGE>
3.2(a) Amended and Restated Bylaws of USI (filed as Exhibit 3.2 to
the Form 10-K).*
3.2(b) Bylaws of USI American Holdings (filed as Exhibit 3.2(a) to
the USIAH Form S- 4).*
3.2(c) Amended and Restated Bylaws of USI Atlantic (filed as Exhibit
3.2 to the Annual Report on Form 10-k of USI Atlantic for the
year ended September 28, 1996).*
4.1 Indenture, dated as of October 27, 1998, among the Issuers,
the Guarantor and The First National Bank of Chicago, as
Trustee (filed as Exhibit 4.4 to the Form 10-K).*
4.2 Specimen Registered Notes (included in Exhibit 4.1).*
4.3 Registration Rights Agreement, dated October 22, 1998, among
the Issuers, the Guarantor and Credit Suisse First Boston
Corporation on behalf of the Initial Purchasers.***
5.1 Opinion of Weil, Gotshal & Manges LLP.**
10.1 Credit Agreement, dated December 12, 1996, among the Issuers,
the Guarantor, Various Banks named therein, Bank of America
National Trust and Savings Association, as Issuing Bank,
Swingline Bank and Agent, and BA Securities, Inc., as Arranger
(filed as Exhibit 10.13 to the Form 10-K).*
12.1 Computation of Ratio of Earnings to Fixed Charges.****
23.1 Consent of Ernst & Young LLP.***
23.2 Consent of PricewaterhouseCoopers LLP.***
23.4 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).**
24.1 Powers of Attorney.**
25.1 Form T-1 Statements of Eligibility under the Trust Indenture
Act of 1939, as amended, of the Trustee under the
Indenture.***
99.1 Form of Letter of Transmittal.****
99.2 Form of Notice of Guaranteed Delivery.***
99.3 Form of Letter to Brokers.***
99.4 Form of Letter to Clients.***
- ------------------
* Incorporated herein by reference.
** Previously filed.
*** Filed herewith.
**** To be filed by Amendment
(b) Financial Statement Schedules.
II. Valuation and Qualifying Accounts (included in Item 8 of the
Company's 1998 Annual Report), which is incorporated herein by reference.
(c) Not applicable.
II-3
<PAGE>
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing 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.
(b) The undersigned Registrants hereby undertake to deliver or cause to
be delivered with the prospectus, to each person to 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 is 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.
(c) 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.
(d) The undersigned Registrants hereby undertake to respond to requests
for information that is incorporated by reference into the
prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within
one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement
through the date of responding to the request.
II-4
<PAGE>
(e) The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the
subject of and included in the Registration Statement when it became
effective.
(f) The undersigned hereby undertake:
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum 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 (f)(1)(i) and (f)(1)(ii) doe 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 15(d) of the Securities Act of 1934 that
are incorporated by reference 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrants named
below have 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 March 5, 1999.
USI AMERICAN HOLDINGS, INC.
USI ATLANTIC CORP.
U.S. INDUSTRIES, INC.
By: /s/ George H. MacLean
-----------------------------------------
Name: George H. MacLean
Title: Senior Vice President, General
Counsel and Secretary
<TABLE>
<CAPTION>
USI AMERICAN HOLDINGS, INC.
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------ ---------------------
<S> <C> <C>
* Chairman of the Board and March 5, 1999
- ------------------------------ Chief Executive Officer
David H. Clarke (Principal Executive Officer)
* Director, President and
- ------------------------------ Chief Operating Officer March 5, 1999
John G. Raos
/s/ George H. MacLean Director, Senior Vice March 5, 1999
- ------------------------------ President, General Counsel
George H. MacLean and Secretary
Senior Vice President and March 5, 1999
* Chief Financial Officer
- ------------------------------ (Principal Financial Officer)
James O'Leary
* Corporate Controller March 5, 1999
- ------------------------------ (Principal Accounting
Robert P. Noonan Officer)
By: /s/ George H. MacLean
------------------------------
George H. MacLean
Attorney-in-fact
II-6
<PAGE>
USI ATLANTIC CORP.
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------ ---------------------
* Chairman of the Board and Chief March 5, 1999
- ----------------------------- Executive Officer (Principal Executive
David H. Clarke Officer)
* Director March 5, 1999
- -----------------------------
Brian C. Beazer
* Director March 5, 1999
- -----------------------------
Sir Harry Solomon
* Director March 5, 1999
- -----------------------------
Royall Victor III
/s/ George H. MacLean Director, Senior Vice President, March 5, 1999
- ----------------------------- General Counsel and Secretary
George H. MacLean
* Senior Vice President and Chief March 5, 1999
- ----------------------------- Financial Officer (Principal Financial
James O'Leary Officer)
* Corporate Controller (Principal March 5, 1999
- ----------------------------- Accounting Officer)
Robert P. Noonan
By: /s/ George H. MacLean
----------------------------
George H. MacLean
Attorney-in-fact
II-7
<PAGE>
U.S. INDUSTRIES, INC.
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------ ---------------------
* Chairman of the Board and Chief March 5, 1999
- ----------------------------- Executive Officer (Principal Executive
David H. Clarke Officer)
* Director, President and Chief Operating March 5, 1999
- ----------------------------- Officer
John G. Raos
* Director March 5, 1999
- -----------------------------
Brian C. Beazer
Director March , 1999
- -----------------------------
William E. Butler
* Director March 5, 1999
- -----------------------------
John J. McAtee, Jr.
Director March 5, 1999
- -----------------------------
The Hon. Charles H. Price II
* Director March 5, 1999
- -----------------------------
Sir Harry Solomon
* Director March 5, 1999
- -----------------------------
Royall Victor III
Director March 5, 1999
- -----------------------------
Mark Vorder Bruegge
* Director March 5, 1999
- -----------------------------
Robert R. Womack
* Senior Vice President and Chief March 5, 1999
- ----------------------------- Financial Officer (Principal Financial
James O'Leary Officer)
* Corporate Controller March 5, 1999
- ----------------------------- (Principal Accounting Officer)
Robert P. Noonan
By: /s/ George H. MacLean
------------------------------
George H. MacLean
Attorney-in-fact
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Document
----------- -----------------------
3.1(a) Amended and Restated Certificate of Incorporation of USI
(filed as Exhibit 3.1 to the Form 10-K).*
3.1(b) Certificate of Incorporation of USI American Holdings (filed
as Exhibit 3.1(a) to the Registration Statement on Form S-4 of
USI American Holdings (Registration No. 333-20183 (the "USIAH
Form S-4")).*
3.1(c) Amended and Restated Certificate of Incorporation of USI
Atlantic.***
3.2(a) Amended and Restated Bylaws of USI (filed as Exhibit 3.2 to
the Form 10-K).*
3.2(b) Bylaws of USI American Holdings (filed as Exhibit 3.2(a) to
the USIAH Form S- 4).*
3.2(c) Amended and Restated Bylaws of USI Atlantic (filed as Exhibit
3.2 to the Annual Report on Form 10-k of USI Atlantic for the
year ended September 28, 1996).*
4.1 Indenture, dated as of October 27, 1998, among the Issuers,
the Guarantor and The First National Bank of Chicago, as
Trustee (filed as Exhibit 4.4 to the Form 10-K).*
4.2 Specimen Registered Notes (included in Exhibit 4.1).*
4.3 Registration Rights Agreement, dated October 22, 1998, among
the Issuers, the Guarantor and Credit Suisse First Boston
Corporation on behalf of the Initial Purchasers.***
5.1 Opinion of Weil, Gotshal & Manges LLP.**
10.1 Credit Agreement, dated December 12, 1996, among the Issuers,
the Guarantor, Various Banks named therein, Bank of America
National Trust and Savings Association, as Issuing Bank,
Swingline Bank and Agent, and BA Securities, Inc., as Arranger
(filed as Exhibit 10.13 to the Form 10-K).*
12.1 Computation of Ratio of Earnings to Fixed Charges.****
23.1 Consent of Ernst & Young LLP.***
23.2 Consent of PricewaterhouseCoopers LLP.***
23.4 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).**
24.1 Powers of Attorney.**
25.1 Form T-1 Statements of Eligibility under the Trust Indenture
Act of 1939, as amended, of the Trustee under the
Indenture.***
99.1 Form of Letter of Transmittal.****
99.2 Form of Notice of Guaranteed Delivery.***
99.3 Form of Letter to Brokers.***
99.4 Form of Letter to Clients.***
- ------------------
* Incorporated herein by reference.
** Previously filed.
*** Filed herewith.
**** To be filed by amendment
II-9
Exhibit 3.1(c)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
USI ATLANTIC CORP.
This document constitutes an amendment and restatement of the original
Certificate of Incorporation of USI Atlantic Corp. (the "Corporation"), which
was filed with the Secretary of State of Delaware on February 14, 1995 under the
name U.S. Industries, Inc. and was previously amended and restated on April 13,
1995 and May 3, 1995, and was further amended pursuant to a Certificate of
Merger filed on June 11, 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 USI Atlantic Corp.
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 2,000(Two Thousand) shares. The authorized capital stock is divided into
1,000 (One Thousand) shares of preferred stock, of the par value of $.01 each
(the "Preferred Stock"), and 1,000 (One Thousand) shares of common stock, of the
par value of $.01 each (the "Common Stock").
NYFS11...:\95\78595\0001\1323\CRT8155K.360
<PAGE>
SECTION 4.2 Preferred Stock. 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
2
<PAGE>
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 the 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
3
<PAGE>
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 ByLaws of
the Corporation; provided, however, that no ByLaws 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 my
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 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, or 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 then entitled to vote generally in the election of directors, voting
together as a single class, and any directors so appointed shall hold office
until the next election of directors and until their successors are elected and
qualified.
SECTION 5.4 Removal of Directors. Except as may be provided in a
resolution or resolutions providing for any
4
<PAGE>
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
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 of 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 an 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 ByLaws. 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 limiting
the person liability of directors, then the liability of a director of the
Corporation shall be
5
<PAGE>
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 Article 5.4, 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.
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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.
THE UNDERSIGNED, being the Senior Vice President of the Corporation, for
the purpose of amending and restating the Certificate of Incorporation of the
Corporation pursuant to Delaware Law, does make this Certificate, hereby
declaring and certifying that this is the act and deed of the corporation and
that the facts herein stated are true, and accordingly have hereunto set my hand
as of the 6th day of November, 1998.
/s/ George H. MacLean
-------------------------------------
George H. MacLean,
Senior Vice President
ATTEST
/s/ Steven C. Barre
-------------------------------------
Steven C. Barre,
Assistant Secretary
7
Exhibit 4.3
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
$250,000,000 7 1/8% SENIOR NOTES DUE 2003
REGISTRATION RIGHTS AGREEMENT
-----------------------------
October 22, 1998
Credit Suisse First Boston Corporation
BT Alex. Brown Incorporated
NationsBanc Montgomery Securities LLC
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
U.S. Industries, Inc., a Delaware corporation ("USI"), and USI American
Holdings, Inc., a Delaware corporation and an indirect wholly-owned subsidiary
of USI ("USIAH", and together with USI, the "Companies"), propose to issue and
sell, on a joint and several basis to the several initial purchasers named in
Schedule A to the purchase agreement (the "Initial Purchasers"), dated of even
date herewith (the "Purchase Agreement"), upon the terms set forth in the
Purchase Agreement, $250,000,000 aggregate principal amount of their 7 1/8%
Senior Notes due 2003 (the "Initial Securities") to be unconditionally
guaranteed (the "Guarantee") by USI Atlantic Corp., a Delaware corporation and a
direct wholly-owned subsidiary of USI (the "Guarantor"). The Initial Securities
will be issued and the Guarantee will be entered into pursuant to an Indenture,
dated as of October 27, 1998 (the "Indenture"), among the Companies, the
Guarantor and The First National Bank of Chicago (the "Trustee"). As an
inducement to the Initial Purchasers, the Companies and the Guarantor agree with
the Initial Purchasers, for the benefit of the holders (collectively, the
"Holders") of the Initial Securities (including, without limitation, the Initial
Purchasers), the Exchange Securities and the Private Exchange Securities (as
defined below), as follows:
1. Registered Exchange Offer. The Companies and the Guarantor shall, at
their own cost, prepare and, not later than 90 days after (or if the 90th day is
not a business day, the first business day thereafter) the date of original
issue of the Initial Securities (the "Issue Date"), file with the Securities and
Exchange Commission (the "Commission") a registration statement (the
NYDOCS01/426551 6
<PAGE>
"Exchange Offer Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to a
proposed offer (the "Registered Exchange Offer") to the Holders of Transfer
Restricted Securities (as defined in Section 6 hereof), who are not prohibited
by any law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt securities (the
"Exchange Securities") of the Companies issued under the Indenture and identical
in all material respects to the Initial Securities (except that the Exchange
Securities will not contain terms relating to transfer restrictions and the
matters described in Section 6 hereof) that would be registered under the
Securities Act. Each of the Companies and the Guarantor shall use its best
efforts to cause such Exchange Offer Registration Statement to become effective
under the Securities Act within 180 days (or if the 180th day is not a business
day, the first business day thereafter) after the Issue Date of the Initial
Securities and shall keep the Exchange Offer Registration Statement effective
for not less than 20 business days (or longer, if required by applicable law)
after the date notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the "Exchange Offer Registration Period").
If the Companies effect the Registered Exchange Offer, the Companies and
the Guarantor will be entitled to close the Registered Exchange Offer 20
business days after the commencement thereof provided that the Companies have
accepted all the Initial Securities theretofore validly tendered in accordance
with the terms of the Registered Exchange Offer. The Companies and the Guarantor
will use their best efforts to consummate the Exchange Offer within 210 days
after the Issue Date.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Companies and the Guarantor shall promptly commence
the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of Transfer Restricted Securities electing
to exchange the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Companies or the Guarantor within the meaning
of the Securities Act, is not a broker-dealer tendering Initial Securities
acquired directly from the Issuers for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business, has no arrangements
with any person to participate in the distribution of the Exchange Securities
and is not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer) to trade such Exchange Securities from and
after their receipt without any limitations or restrictions under the Securities
Act and without material restrictions under the securities laws of a material
portion of the several states of the United States.
The Companies and the Guarantor acknowledge that, pursuant to current
interpretations by the Staff of Section 5 of the Securities Act, in the absence
of an applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Securities, acquired for their own account as a result of
market making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in
the "Exchange Offer
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Procedures" section and the "Purpose of the Exchange Offer" section, and (c)
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an Initial
Purchaser that elects to sell Exchange Securities acquired in exchange for
Securities constituting any portion of an unsold allotment is required to
deliver a prospectus containing the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in connection with such
sale.
Each of the Companies and the Guarantor shall use its best efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the prospectus contained therein, in order to permit such prospectus to be
lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Securities;
provided, however, that the Companies shall not be required to maintain the
effectiveness of the Exchange Offer Registration Statement for more than 60 days
following consummation of the Exchange Offer unless the Companies have been
notified in writing on or prior to the 60th day following the consummation of
the Exchange Offer by one or more Exchanging Dealers that such Holder has
received Exchange Notes as to which it will be required to deliver a prospectus
upon resale; provided further, however, that in any event, the Companies shall
not be required to maintain the effectiveness of the Exchange Offer Registration
Statement for more than 180 days.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of their initial
distribution, the Companies, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Companies
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 hereof) to the Initial
Securities (the "Private Exchange Securities"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Companies and the
Guarantor shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
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(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all laws applicable to the Registered
Exchange Offer.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Companies and the Guarantor shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Companies that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Companies or if it is an affiliate, such
Holder will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange
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Securities for their own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities and
that it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities.
The Companies and the Guarantor represent and warrant to, and agree with,
each of the Initial Purchasers and the Holders of any Transfer Restricted
Securities that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto, when
it becomes effective or is filed with the Commission, will comply in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any supplement to
such prospectus, at all times when a prospectus would be required to be
delivered under the Securities Act, does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing representation, warranty and agreement shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Companies and the Guarantor by a Holder of Transfer
Restricted Securities expressly for use herein.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Companies
and the Guarantor determine upon the advice of outside counsel that they are not
permitted to effect a Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) for any reason other than that specified in clause (i) above, the
Registered Exchange Offer is not consummated within 210 days of the Issue Date,
(iii) any Initial Purchaser so requests with respect to the Initial Securities
(or the Private Exchange Securities) not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer or an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer or an Initial Purchaser) that participates in the Registered
Exchange Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange, the Companies and the Guarantor shall
take the following actions:
(a) The Companies and the Guarantor shall, at their cost, as
promptly as practicable (but in no event more than 30 days after so
required or requested pursuant to this Section 2) file with the Commission
and thereafter shall use their best efforts to cause to be declared
effective a registration statement (the "Shelf Registration Statement"
and, together with the Exchange Offer Registration Statement, a
"Registration Statement") on an appropriate form under the Securities Act
relating to the offer and sale of the Transfer Restricted Securities (as
defined in Section 6 hereof) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
Registration
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Statement and Rule 415 under the Securities Act (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other than an Initial
Purchaser) shall be entitled to have the Securities held by it covered by
such Shelf Registration Statement unless such Holder agrees in writing to
be bound by all the provisions of this Agreement applicable to such
Holder.
(b) The Companies and the Guarantor shall use their best efforts to
keep the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years from the
date of their effectiveness (or until one year after such date of
effectiveness if such Shelf Registration Statement is filed at the request
of the Initial Purchaser or such shorter period that will terminate when
all the Securities covered by the Shelf Registration Statement (i) have
been sold pursuant thereto or (ii) are no longer restricted securities (as
defined in Rule 144 under the Securities Act, or any successor rule
thereof).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Companies and the Guarantor shall use their best efforts to
ensure that the Shelf Registration Statement and the related prospectus
and any amendment or supplement thereto, as of the effective date of the
Shelf Registration Statement, amendment or supplement, (i) complies in all
material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission and (ii) does not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representation, warranty
and agreement shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to
the Companies and the Guarantor by a Holder of Transfer Restricted
Securities expressly for use therein.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Companies and the Guarantor shall (i) furnish to each
Initial Purchaser, prior to the filing thereof with the Commission, a copy
of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and, in the event
that an Initial Purchaser (with respect to any portion of an unsold
allotment from the original offering) is participating in the Registered
Exchange Offer or the Shelf Registration Statement, the Companies and the
Guarantor shall use their best efforts to reflect in each such document,
when so filed with the Commission, such comments as such Initial Purchaser
reasonably may propose; (ii) include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer
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Procedures" section and the "Purpose of the Exchange Offer" section and in
Annex C hereto in the "Plan of Distribution" section of the prospectus
forming a part of the Exchange Offer Registration Statement and include
the information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested by
an Initial Purchaser, include the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the Staff
with respect to the potential "underwriter" status of any broker-dealer
that is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Securities received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer"), whether such positions
or policies have been publicly disseminated by the Staff or such positions
or policies, in the reasonable judgment of the Initial Purchasers based
upon advice of counsel (which may be in-house counsel), represent the
prevailing views of the Staff; and (v) in the case of a Shelf Registration
Statement, include the names of the Holders, who propose to sell
Securities pursuant to the Shelf Registration Statement, as selling
securityholders.
(b) The Companies and the Guarantor shall promptly provide written
notification to the Initial Purchasers, the Holders of the Securities and
any Participating Broker-Dealer from whom the Companies have received
prior written notice that it will be a Participating Broker-Dealer in the
Registered Exchange Offer (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Companies or the Guarantor or their
legal counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose;
and
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(v) of the happening of any event that requires the Companies
or the Guarantor to make changes in the Registration Statement or
the prospectus in order that, as of such date, the Registration
Statement or the prospectus do not contain an untrue statement of a
material fact nor omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of the prospectus, in light of the circumstances under which
they were made) not misleading.
(c) The Companies and the Guarantor shall make every reasonable
effort to obtain the withdrawal at the earliest possible time, of any
order suspending the effectiveness of the Registration Statement.
(d) The Companies or the Guarantor shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(e) The Companies and the Guarantor shall deliver to each Exchanging
Dealer and each Initial Purchaser, and to any other Holder who so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any Initial Purchaser or any
such Holder requests, all exhibits thereto (including those incorporated
by reference).
(f) The Companies and the Guarantor shall, during the Shelf
Registration Period, deliver to each Holder of Securities included within
the coverage of the Shelf Registration, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Companies and the Guarantor
consent, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the selling
Holders of the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Companies and the Guarantor shall deliver to each Initial
Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment or
supplement thereto as such persons may reasonably request. The Companies
and the Guarantor consent, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver
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a prospectus following the Registered Exchange Offer in connection with
the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such
Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Companies and the Guarantor shall register or
qualify or cooperate with the Holders of the Securities included therein
and their respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the securities or
"blue sky" laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Companies and the Guarantor shall not be
required to (i) qualify generally to do business or as a dealer in
securities in any jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(i) The Companies and the Guarantor shall cooperate with the Holders
of the Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations consistent with the terms of the Indenture and registered in
such names as the Holders may request a reasonable period of time prior to
sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the
Companies and the Guarantor are required to maintain an effective
Registration Statement, the Companies and the Guarantor shall promptly
prepare and file a post-effective amendment to the Registration Statement
or a supplement to the related prospectus and any other required document
so that, as thereafter delivered to Holders of the Securities or
purchasers of Securities, the prospectus will not contain an 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 were made, not misleading. If the
Companies and the Guarantor notify the Initial Purchasers, the Holders of
the Securities and any known Participating Broker-Dealer in accordance
with paragraphs (ii) through (v) of Section 3(b) above to suspend the use
of the prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving of such notice to
and including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented
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prospectus pursuant to this Section 3(j). Notwithstanding the foregoing,
the Companies and the Guarantor shall not be required to amend or
supplement a Shelf Registration Statement, any related prospectus or any
document incorporated therein by reference, for a period not to exceed an
aggregate of 60 days in any calendar year, if (i) an event occurs and is
continuing as a result of which the Shelf Registration would, in the
Companies' good faith judgment, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (ii) the Companies determine in their good
faith judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the
Companies or the disclosure otherwise relates to a pending material
business transaction that has not yet been publicly disclosed.
(k) Not later than the effective date of the applicable Registration
Statement, the Companies and the Guarantor will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange Securities
or the Private Exchange Securities, as the case may be, in a form eligible
for deposit with The Depository Trust Company.
(l) Each of the Companies and the Guarantor will comply with all
rules and regulations of the Commission to the extent and so long as they
are applicable to the Registered Exchange Offer or the Shelf Registration
and will make generally available to their security holders (or otherwise
provide in accordance with Section 11(a) of the Securities Act) an
earnings statement of USI and for its affiliates, to the extent required
by the Staff, covering at least 12 months satisfying the provisions of
Section 11(a) of the Securities Act.
(m) The Companies and the Guarantor shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Companies and the
Guarantor shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(n) The Companies and the Guarantor may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Companies and the Guarantor such information regarding the
Holder and the distribution of the Securities as the Companies and the
Guarantor may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Companies and the Guarantor may
exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
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(o) Each of the Companies and the Guarantor shall enter into such
customary agreements (including, if requested, an underwriting agreement
in customary form) and take all such other action, if any, as any Holder
of the Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Companies and the
Guarantor shall (i) make reasonably available for inspection by the
Holders of the Securities, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and any attorney,
accountant or other agent retained by the Holders of the Securities or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Companies and the Guarantor and
(ii) cause the Companies' and the Guarantor's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders of the Securities or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the Initial Purchasers by you and on behalf of the other
parties, by one counsel designated by and on behalf of such other parties
as described in Section 4 hereof.
(q) In the case of any Shelf Registration, the Companies and the
Guarantor, if requested by any Holder of Securities covered thereby, shall
cause (i) their counsel to deliver an opinion and updates thereof relating
to the Securities in customary form, scope and substance addressed to such
Holders and the managing underwriters, if any, thereof and dated, in the
case of the initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such opinion
shall include, without limitation, the due incorporation and good standing
of each of the Companies and their subsidiaries; the qualification of each
of the Companies and their subsidiaries to transact business as foreign
corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(o) hereof; the due
authorization, execution, authentication and issuance, and the validity
and enforceability, of the applicable Securities; the absence of material
legal or governmental proceedings involving each of the Companies and
their subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration Statement, the offering
and sale of the applicable Securities, or any agreement of the type
referred to in Section 3(o) hereof; the compliance as to form of such
Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act, respectively; and, as of the date of the
opinion and as of the effective date of the Shelf Registration Statement
or most recent post-effective amendment thereto, as the case may be, the
absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from any documents
incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material fact required to be
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<PAGE>
stated therein or necessary to make the statements therein not misleading
(in the case of any such documents, in the light of the circumstances
existing at the time that such documents were filed with the Commission
under the Exchange Act); (ii) their officers to execute and deliver all
customary documents and certificates and updates thereof requested by the
managing underwriters of the applicable Securities; and (iii) their
independent public accountants (and the independent public accountants
with respect to any other entity for which financial information is
provided in the Shelf Registration Statement) to provide to the selling
Holders of the applicable Securities (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants) and any underwriter therefor a comfort
letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten
offerings.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Participating Broker-Dealer, the
Companies and the Guarantor shall cause (i) their counsel to deliver to
such Initial Purchaser or such Participating Broker-Dealer a signed
opinion in the form set forth in Section 6(c) of the Purchase Agreement
with such changes as are customary in connection with the preparation of a
Registration Statement and (ii) their independent public accountants to
deliver to such Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 6(a) of the Purchase Agreement,
with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Companies (or to such other Person as directed by the Companies) in
exchange for the Exchange Securities or the Private Exchange Securities,
as the case may be, the Companies shall mark, or caused to be marked, on
the Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities
be marked as paid or otherwise satisfied.
(t) The Companies and the Guarantor will use their best efforts to
confirm that the rating of the Initial Securities will apply to the
Securities covered by a Registration Statement, if so requested by Holders
of a majority in aggregate principal amount of Securities covered by such
Registration Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or
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<PAGE>
a broker or dealer in respect thereof, or otherwise, the Companies and the
Guarantor will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if such
Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
4. Registration Expenses. The Companies and the Guarantor, on a joint and
several basis, shall bear all fees and expenses incurred in connection with the
performance of their obligations under Sections 1 through 3 hereof (including
the reasonable fees and expenses, if any, of Shearman & Sterling, counsel for
the Initial Purchasers, incurred in connection with the Registered Exchange
Offer), whether or not the Registered Exchange Offer or a Shelf Registration is
filed or becomes effective, and, in the event of a Shelf Registration, shall
bear or reimburse the Holders of the Securities covered thereby for the
reasonable fees and disbursements of one firm of counsel designated by the
Holders of a majority in principal amount of the Initial Securities covered
thereby to act as counsel for the Holders of the Initial Securities in
connection therewith.
5. Indemnification. (a) The Companies, on a joint and several basis, agree
to indemnify and hold harmless each Holder of the Securities, any Participating
Broker-Dealer and each person, if any, who controls such Holder or such
Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement furnished pursuant to this Agreement or any prospectus
contained therein or in any amendment or supplement thereto, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse (without duplication), as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the
Companies shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
Registration Statement furnished pursuant to this Agreement or any prospectus
contained
13
<PAGE>
therein or in any amendment or supplement thereto in reliance upon and in
conformity with written information pertaining to such Holder and furnished to
the Companies by or on behalf of such Holder specifically for inclusion therein
and (ii) the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Holder or Participating
Broker-Dealer results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the final prospectus if the Companies had previously
furnished copies thereof to such Holder or Participating Broker-Dealer; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Companies may otherwise have to such Indemnified Party. The
Companies, on a joint and several basis, shall also indemnify underwriters,
their officers and directors and each person who controls such underwriters
within the meaning of the Securities Act or the Exchange Act to the same extent
as provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Companies, the Guarantor and each person, if
any, who controls the Companies and the Guarantor within the meaning of the
Securities Act or the Exchange Act from and against any losses, claims, damages
or liabilities or any actions in respect thereof, to which the Companies, the
Guarantor or any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement furnished pursuant to this Agreement or any prospectus included
therein or in any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue statement or
omission was made in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Companies by or on behalf of such
Holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Companies and the Guarantor for any legal or other expenses reasonably incurred
by the Companies, the Guarantor or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Companies, the Guarantor or any of
their controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not, in any event, relieve the indemnifying party
from any
14
<PAGE>
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of their election
so to assume the defense thereof the indemnifying party will not be liable to
such indemnified party under this Section 5 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section 5 is unavailable
or insufficient to hold harmless an indemnified party under subsections (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities, pursuant to
the Registered Exchange Offer, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Companies on the one hand
or such Holder or such other indemnified party, as the case may be, on the
other, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
15
<PAGE>
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Companies within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Companies.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Initial Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below a "Registration Default":
(i) If by January 25, 1999, the Exchange Offer Registration
Statement nor a Shelf Registration Statement has not been filed with the
Commission;
(ii) If by April 25, 1999, the Exchange Offer Registration Statement
is not declared effective by the Commission;
(iii) If by May 25, 1999, the Exchange Offer is not consummated or,
if required, a Shelf Registration Statement is not declared effective; or
(iv) If after either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective but thereafter
ceases to be effective or usable (except as permitted in paragraph (b)) in
connection with resales of Transfer Restricted Securities during the
periods specified herein because either (1) any event occurs as a result
of which the related prospectus forming part of such Registration
Statement would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, or
(2) it shall be necessary to amend such Registration Statement or
supplement the related prospectus, to comply with the Securities Act or
the Exchange Act or the respective rules thereunder.
Additional Interest shall accrue on the Initial Securities over and above the
interest set forth in the title of the Securities from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.50% per
annum.
16
<PAGE>
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Companies where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Companies that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Companies are proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 60 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i), (ii) or
(iii) of Section 6(a) above will be payable in cash on the regular interest
payment dates with respect to the Initial Securities. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Initial Securities, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Transfer Restricted Security has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of a Initial Security for an Exchange Note, the date
on which such Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of the prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Initial Security has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (iv) the
date on which such Initial Securities is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
7. Rules 144 and 144A. Each of the Companies shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Companies are not
required to file such reports, it will, upon the request of any Holder of
Initial Securities, make publicly available other information so long as
necessary to permit sales of their securities pursuant to Rules 144 and 144A.
Each of the Companies covenants that it will take such further action as any
Holder of Initial Securities may reasonably request, all to the extent required
from time to time to enable such Holder to sell Initial Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Companies will
17
<PAGE>
provide a copy of this Agreement to prospective purchasers of Initial Securities
identified to the Companies by the Initial Purchasers upon request. Upon the
request of any Holder of Initial Securities, the Companies shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Companies to register any of their securities pursuant to the
Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Companies and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Companies.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
18
<PAGE>
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Fax No.: (212) 848-7179
Attention: Stuart K. Fleischmann, Esq.
(3) if to the Companies or the Guarantor or USI, at its address as
follows:
U.S. Industries, Inc.
101 Wood Avenue South
P.O. Box 169
Iselin, NJ 08830
Fax No.: (732) 767-2208
Attention: General Counsel
with a copy to:
Weil, Gotshal & Manges LLP
767 5th Avenue
New York, NY 10153
Fax No.: (212) 310-8007
Attention: Ellen J. Odoner, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. Neither of the Companies nor the Guarantor
has, as of the date hereof, entered into, nor shall it, on or after the date
hereof, enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon each of
the Companies, the Guarantor and their successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the 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.
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<PAGE>
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Securities Held by the Companies. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Companies or their affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Companies and the Guarantor in
accordance with their terms.
Very truly yours,
U.S. INDUSTRIES, INC., as Issuer
By: /s/ Peter F. Reilly
------------------------------------
Name: Peter F. Reilly
Title: Treasurer
USI AMERICAN HOLDINGS, INC., as Issuer
By: /s/ Peter F. Reilly
------------------------------------
Name: Peter F. Reilly
Title: Treasurer
20
<PAGE>
USI ATLANTIC CORP., as Guarantor
By: /s/ Peter F. Reilly
------------------------------------
Name: Peter F. Reilly
Title: Treasurer
The foregoing Registration Rights
Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BT ALEX. BROWN INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ James M. Dunphy
-------------------------------------
Name: James M. Dunphy
Title:Director
21
<PAGE>
ANNEX A
Each broker-dealer that receives Exchange Securities for their own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Companies have agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
<PAGE>
ANNEX B
Each broker-dealer that receives Exchange Securities for their own account
in exchange for Securities, where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
<PAGE>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for their own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Companies
have agreed that, for a period of 180 days after the Expiration Date, it will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with any such resale. In addition, until , 1998,
all dealers effecting transactions in the Exchange Securities may be required
to deliver a prospectus.(1)
The Companies will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for their own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Companies will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Companies have
- --------------------------
1 In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
<PAGE>
agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the Holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
<PAGE>
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
---------------------------------
Address:
---------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Amendment No.1 to Form S-4 and related prospectus of
U.S. Industries, Inc. and USI American Holdings, Inc. for the registration of
their 7 1/8% Senior Notes due 2003 and to the incorporation by reference therein
of our report dated November 12, 1998, with respect to the consolidated
financial statements and schedule of U.S. Industries, Inc. included in its
Annual Report on Form 10-K for the year ended October 3, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
March 5 , 1999
NYFS11...:\95\78595\0012\2011\REG2249P.59B
EXHIBIT 23.2
CONSENT OF PRICEWATERHOUSECOOPERS LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the prospectus
constituting part of this Registration Statement on Form S-4 of U.S. Industries,
Inc. of our report dated November 14, 1997 appearing on page 21 of the U.S.
Industries, Inc. Annual Report on Form 10-K for the year ended October 3, 1998.
We also consent to the reference to us under the headings "Experts" in such
prospectus.
/s/ PricewaterhouseCoopers LLP
Florham Park, New Jersey
March 5, 1999
NYFS11...:\95\78595\0012\2011\REG2249P.59B
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
USI AMERICAN HOLDINGS, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3363062
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
101 WOOD AVENUE SOUTH
ISELIN, NEW JERSEY 08830
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
7-18% SENIOR NOTES DUE 2003
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 28th day of January,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ SANDRA L. CARUBA
------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc. filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 28, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between USI American
Holdings, Inc. and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ SANDRA L. CARUBA
-------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)....................... 0081 4,898,646 1.a
b. Interest-bearing balances(2)................................................ 0071 4,612,143 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)................ 1773 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to resell......... 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C).......................................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses................................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve....................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)........................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............................................ 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)....................... 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)................................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................................. 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding................... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)......................................... 2143 295,823 10.
11. Other assets (from Schedule RC-F).............................................. 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)....................................... 2170 61,971,271 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
13. Deposits:
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)................................................ 2200 20,965,124 13.a
(1) Noninterest-bearing(1)................................................. 6631 9,191,662 13.a1
(2) Interest-bearing....................................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)......................................... 2200 15,912,956 13.b
(1) Noninterest bearing.................................................... 6631 475,182 13.b1
(2) Interest-bearing....................................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:................................................................ RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury................................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)................................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................................. 2332 4,603,402 16.a
b. With original maturity of more than one year.............................. A547 328,001 16.b
c.With original maturity of more than three years ............................ A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....................... 2920 352,324 18.
19. Subordinated notes and debentures............................................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................. 3838 0 23.
24. Common stock.................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...................... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves..................................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................................. 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments........................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............................. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................................... 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of Number
any date during 1996...............RCFD 6724....................... N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
USI ATLANTIC CORP.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3369326
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
101 WOOD AVENUE SOUTH
ISELIN, NEW JERSEY 08830
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTIEE OF 7-1/8% SENIOR NOTES DUE 2003
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 28th day of January,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ SANDRA L. CARUBA
--------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc. filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 28, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between USI Atlantic Corp.
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ SANDRA L. CARUBA
-------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)....................... 0081 4,898,646 1.a
b. Interest-bearing balances(2)................................................ 0071 4,612,143 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)................ 1773 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to resell......... 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C).......................................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses................................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve....................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)........................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............................................ 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)....................... 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)................................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................................. 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding................... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)......................................... 2143 295,823 10.
11. Other assets (from Schedule RC-F).............................................. 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)....................................... 2170 61,971,271 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
13. Deposits:
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)................................................ 2200 20,965,124 13.a
(1) Noninterest-bearing(1)................................................. 6631 9,191,662 13.a1
(2) Interest-bearing....................................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)......................................... 2200 15,912,956 13.b
(1) Noninterest bearing.................................................... 6631 475,182 13.b1
(2) Interest-bearing....................................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:................................................................ RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury................................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)................................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................................. 2332 4,603,402 16.a
b. With original maturity of more than one year.............................. A547 328,001 16.b
c.With original maturity of more than three years ............................ A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....................... 2920 352,324 18.
19. Subordinated notes and debentures............................................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................. 3838 0 23.
24. Common stock.................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...................... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves..................................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................................. 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments........................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............................. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................................... 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of Number
any date during 1996...............RCFD 6724....................... N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
U.S. INDUSTRIES, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-3568449
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
101 WOOD AVENUE SOUTH
ISELIN, NEW JERSEY 08830
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
7-1/8% SENIOR NOTES DUE 2003
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 28th day of January,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ SANDRA L. CARUBA
-------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National Bank
of Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc. filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 28, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between U.S. Industries,
Inc. and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ SANDRA L. CARUBA
------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1)....................... 0081 4,898,646 1.a
b. Interest-bearing balances(2)................................................ 0071 4,612,143 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)................ 1773 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to resell......... 1350 6,071,229 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C).......................................................................... 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses................................... 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve....................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c)........................................... 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D)............................................ 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases)....................... 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M)................................... 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................................. 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding................... 2155 352,324 9.
10. Intangible assets (from Schedule RC-M)......................................... 2143 295,823 10.
11. Other assets (from Schedule RC-F).............................................. 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11)....................................... 2170 61,971,271 12.
</TABLE>
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
LIABILITIES
13. Deposits:
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)................................................ 2200 20,965,124 13.a
(1) Noninterest-bearing(1)................................................. 6631 9,191,662 13.a1
(2) Interest-bearing....................................................... 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)......................................... 2200 15,912,956 13.b
(1) Noninterest bearing.................................................... 6631 475,182 13.b1
(2) Interest-bearing....................................................... 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:................................................................ RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury................................... RCON 2840 359,381 15.a
b. Trading Liabilities(from Sechedule RC-D)................................... RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less................................. 2332 4,603,402 16.a
b. With original maturity of more than one year.............................. A547 328,001 16.b
c.With original maturity of more than three years ............................ A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding....................... 2920 352,324 18.
19. Subordinated notes and debentures............................................. 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G)........................................ 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20)................................ 2948 56,940,081 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................. 3838 0 23.
24. Common stock.................................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...................... 3839 3,192,857 25.
26. a. Undivided profits and capital reserves..................................... 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................................. 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments........................... 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27)............................. 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................................... 3300 61,971,271 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external auditors as of Number
any date during 1996...............RCFD 6724....................... N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
TO TENDER IN RESPECT OF THE
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
7 1/8% SENIOR NOTES DUE 2003, WHICH HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT,
(INCLUDING THOSE IN BOOK-ENTRY FORM)
FOR
7 1/8% SENIOR NOTES DUE 2003, WHICH HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT,
OF
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
EACH SERIES UNCONDITIONALLY GUARANTEED BY
USI ATLANTIC CORP.
PURSUANT TO THE PROSPECTUS, DATED , 1998
This form or one substantially equivalent hereto must be used to accept
the offer to exchange $1,000 principal amount of the 7 1/8% Senior Notes due
2003, (the "Registered Notes") of U.S. Industries, Inc. and USI American
Holdings, Inc. (the "Issuers"), which are registered under the Securities Act of
1933, as amended (the "Securities Act"), for each $1,000 principal amount of the
Issuer's outstanding 7 1/8% Senior Notes due 2003 (the "Old Notes"), which have
not been registered under the Securities Act, made pursuant to the Prospectus
dated _____, 1999 (the "Prospectus") and the accompanying Letter of Transmittal
(which together constitute the "Exchange Offer"), if (i) a participant ("DTC
Participant") in the Depository Trust Company ("DTC") holding Old Notes through
DTC cannot transmit its acceptance through DTC's Automated Tender Offer Program
("ATOP") prior to 5:00 p.m., New York City time, on _______, 1999, or such later
date and time to which the Exchange Offer may be extended (the "Expiration
Date"), or (ii) a holder of Old Notes (A) does not have certificates immediately
available and cannot tender prior to the Expiration Date, or (B) cannot deliver
their Old Notes, the Letter of Transmittal, or any other required documents to
the Exchange Agent prior to the Expiration Date. Such form may be delivered or
transmitted by facsimile transmission, mail or hand delivery to The First
National Bank of Chicago (the "Exchange Agent") as set forth below. Capitalized
terms used herein and not otherwise defined shall have the respective meanings
ascribed to them in the Prospectus.
THE FIRST NATIONAL BANK OF CHICAGO
Facsimile Transmission Number
(For Eligible Institutions Only)
(212) 373-1383
Confirm by Telephone:
(212) 373-1339
<PAGE>
By Registered or Certified Mail,
By Hand or By Overnight Courier:
153 West 51st Street
New York, NY 10019
Attention:
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA A
FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID
DELIVERY.
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to U.S. Industries, Inc. a Delaware
corporation, and USI American Holdings, Inc., a Delaware corporation (the
"Issuers"), in accordance with the Issuers' offer, upon the terms and subject to
the conditions set forth in the Prospectus dated _______ , 1999 (the
"Prospectus"), and in the accompanying Letter of Transmittal, receipt of which
is hereby acknowledged, the principal amount of Old Notes set forth below,
pursuant to the guaranteed delivery procedures described in the Prospectus.
Name(s) of Record
Holder(s) or DTC Participants
(Please Type or Print)
DTC Participant Number (if applicable)
Address
Area Code & Telephone No.
Principal Amount of Old Notes Tendered: $
Certificate Number(s) for
Old Notes (if available)
Total Principal Amount
Represented by Certificate(s):
All authority herein conferred shall survive the death or incapacity of
the undersigned and every obligation of the undersigned hereunder shall be
binding upon the heirs, personal representatives, successors and assigns of the
undersigned.
Signature of Holder
Dated:
Must be signed by the holder(s) of the Old Notes as their names(s)
appear(s) on certificates for Old Notes or on a security position listing, or by
person(s) authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below.
3
<PAGE>
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
Capacity:
Address(es):
[_] The Depository Trust Company
(Check if Old Notes will be tendered by
book-entry transfer, including through ATOP)
Account Number
THE GUARANTY ON THE FOLLOWING PAGE MUST BE COMPLETED
4
<PAGE>
GUARANTY
(NOT TO BE USED FOR SIGNATURE GUARANTY)
The undersigned, being a member of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or an Eligible Guarantor Institution within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, hereby guarantees that
the undersigned will deliver to the Exchange Agent the certificates representing
the Old Notes being tendered hereby or confirmation of book-entry transfer of
such Old Notes into the Exchange Agent's account at DTC, in proper form for
transfer, together with the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guaranties and
any other required documents, within three New York Stock Exchange trading days
after the Expiration Date:
Name of Firm
Address
Area Code and Telephone No.
Authorized Signature
Name
(Please Type or Print)
Title
Dated
NOTE: DO NOT SEND CERTIFICATES OF OLD NOTES WITH THIS FORM.
CERTIFICATES OF OLD NOTES SHOULD BE SENT ONLY WITH A LETTER
OF TRANSMITTAL.
5
Exhibit 99.3
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
7 1/8% SENIOR NOTES DUE 2003,
WHICH ARE NOT REGISTERED UNDER THE SECURITIES ACT,
FOR
7 1/8% SENIOR NOTES DUE 2003,
WHICH ARE REGISTERED UNDER THE SECURITIES ACT
EACH SERIES UNCONDITIONALLY GUARANTEED BY
USI ATLANTIC CORP.
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees;
U.S. Industries, Inc. and USI American Holdings, Inc. (the "Issuers")
are offering, upon and subject to the terms and conditions set forth in the
Prospectus, dated _______, 1999 (the "Prospectus"), and the enclosed Letter of
Transmittal (the "Letter of Transmittal"), to exchange (the "Exchange Offer")
$1,000 principal amount of their 7 1/8% Senior Notes due 2003 (the
"Registered Notes"), which are registered under the Securities Act of 1933, as
amended (the "Securities Act"), for each $1,000 principal amount of its
outstanding 7 1/8% Senior Notes due 2003 (the "Old Notes"; and
together with the Registered Notes, the "Notes"), which are not registered under
the Securities Act. The Notes are unconditionally guaranteed by USI Atlantic
Corp. (the "Guarantor"). The Exchange Offer is being made in order to satisfy
certain obligations of the Issuers and the Guarantor contained in the
Registration Rights Agreement, dated October 22, 1998, among the Issuers, the
Guarantor and the initial purchasers.
We are requesting that you contact your clients for whom you hold Old
Notes regarding the Exchange Offer. For your information and for forwarding to
your clients for whom you hold Old Notes registered in your name or in the name
of your nominee, or who hold Old Notes registered in their own names, we are
enclosing the following documents:
1. Prospectus dated , 1999;
2. The Letter of Transmittal for your use and for the information
of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the
Exchange Offer if certificates for Old Notes are not
immediately available or time will not permit all required
documents to reach the Exchange Agent prior to the Expiration
Date (as defined below) or if the procedure for book-entry
transfer, including through the Automated Tender Offer Program
("ATOP") of the Depository Trust Company ("DTC"), cannot be
completed on a timely basis;
4. A form of letter which may be sent to your clients for whose
account you hold Old Notes registered in your name or the
name or your nominee, with space provided for obtaining such
clients' instructions with regard to the Exchange Offer; and
5. Guidelines for Certification of Taxpayer Identification Number
of Substitute Form W-9.
<PAGE>
Your prompt action is requested. The Exchange Offer will expire at 5:00
p.m., New York City time, on ________, 1999, unless extended by the Issuers (the
"Expiration Date"). The Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time before 5:00 pm., New York City time, on the Expiration
Date.
To participate in the Exchange Offer, a duly executed and property
completed Letter of Transmittal (or facsimile thereon), with any required
signature guaranties and any other required documents, should be sent to the
Exchange Agent and certificates representing the Old Notes should be delivered
to the Exchange Agent, all in accordance with the instructions set forth in the
Letter of Transmittal and the Prospectus. NOTWITHSTANDING THE FOREGOING, A
PARTICIPANT IN DTC (A "DTC PARTICIPANT") MAY VALIDLY ACCEPT THE TERMS OF THE
EXCHANGE OFFER BY TENDERING OLD NOTES THROUGH ATOP PRIOR TO THE EXPIRATION DATE.
ACCORDINGLY, SUCH DTC PARTICIPANT MUST ELECTRONICALLY TRANSMIT ITS ACCEPTANCE TO
DTC THROUGH ATOP, AND THEN DTC WILL EDIT AND VERIFY THE ACCEPTANCE, EXECUTE A
BOOK-ENTRY DELIVERY TO THE EXCHANGE AGENT'S ACCOUNT AT DTC AND SEND AN AGENT'S
MESSAGE TO THE EXCHANGE AGENT FOR ITS ACCEPTANCE. BY TENDERING THROUGH ATOP,
SUCH DTC PARTICIPANT WILL EXPRESSLY ACKNOWLEDGE RECEIPT OF THIS LETTER OF
TRANSMITTAL AND AGREE TO BE BOUND BY ITS TERMS AND THE ISSUER WILL BE ABLE TO
ENFORCE SUCH AGREEMENT AGAINST SUCH DTC PARTICIPANT.
If holders of Old Notes wish to tender, but it is impracticable for
them to forward their certificates for Old Notes prior to the expiration of the
Exchange Offer or to comply with the book-entry transfer procedures, including
those with respect to tenders through ATOP, on a timely basis, a tender may be
effected by following the guaranteed delivery procedures described in the
Prospectus under the caption "Procedures for Tendering Old Notes--Guaranteed
Delivery Procedures."
Holders who tender their Old Notes for exchange will not be obligated
to pay any transfer taxes in connection therewith, expect that holders who
instruct the Issuers to register Registered Notes in the name of, or request
that Old Notes not tendered or not accepted in the Exchange Offer be returned
to, a person other than the registered tendering holder will be responsible for
the payment of any applicable transfer tax thereon.
Any inquiries you may have with respect to the Exchange Offer, or
requests for additional copies of the enclosed materials, should be directed to
The First National Bank of Chicago, the Exchange Agent for the Old Notes, at its
address and telephone number set forth on the front of the Letter of
Transmittal.
Very truly yours,
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY
PERSON AS AN AGENT OF THE ISSUERS OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF
THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
2
Exhibit 99.4
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
7 1/8% SENIOR NOTES DUE 2003,
WHICH ARE NOT REGISTERED UNDER THE SECURITIES ACT,
FOR
7 1/8% SENIOR NOTES DUE 2003,
WHICH ARE REGISTERED UNDER THE SECURITIES ACT
EACH SERIES UNCONDITIONALLY GUARANTEED BY
USI ATLANTIC CORP.
To Our Clients:
Enclosed for your consideration is a Prospectus, dated ________, 1999
(the "Prospectus"), and the related Letter of Transmittal (the "Letter of
Transmittal"), relating to the offer (the "Exchange Offer") of U.S. Industries,
Inc. and USI American Holdings, Inc. (the "Issuers") to exchange $1,000
principal amount of their 7 1/8% Senior Notes due 2003 (the "Registered Notes"),
which are registered under the Securities Act of 1933, as amended (the
"Securities Act"), for each $1,000 principal amount of their 7 1/8% Senior Notes
due 2003 (the "Old Notes"; and together with the Registered Notes, the "Notes"),
which are not registered under the Securities Act, upon the terms and subject to
the conditions described in the Prospectus. The Notes are unconditionally
guaranteed by USI Atlantic Corp. (the "Guarantor"). The Exchange Offer is being
made in order to satisfy certain obligations of the Issuers and the Guarantor
contained in the Registration Rights Agreement, dated October 22, 1998, among
the Issuers, the Guarantor and the initial purchasers.
This material is being forwarded to you as the beneficial owner of the
Old Notes carried by us in your account but not registered in your name. A
tender of such Old Notes may only be made by us as the holder of record and
pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to
tender on your behalf the Old Notes held by us for your account, pursuant
to the terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Old Notes on your behalf in accordance
with the provisions of the Exchange Offer. The Exchange Offer will expire at
5:00 p.m., New York City time, on _______, 1999, unless extended by the Issuers
(the "Expiration Date"). Any Old Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time before 5:00 p.m., New York City time, on the
Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old Notes.
2. The Exchange Offer is subject to certain conditions set forth
in the Prospectus in the section captioned "The Exchange
Offer--Conditions."
3. Holders who tender their Old Notes for exchange will not
be obligated to pay any transfer taxes in connection
therewith, except that holders who instruct the Issuers to
register Registered Notes in the name of, or request that Old
Notes not be tendered or not accepted in the Exchange Offer be
returned to, a person other than the registered tendering
holder will be responsible for the payment of any applicable
transfer tax thereon.
1
<PAGE>
4. The Exchange Offer expires at 5:00 p.m., New York City time,
on ________, 1999, unless extended by the Issuers.
If you wish to have us tender your Old Notes, please so instruct
us by completing, executing and returning to us the instruction form on the back
of this letter. The Letter of Transmittal is furnished to you for information
only and may not be used directly by you to tender Old Notes.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer made by U.S.
Industries, Inc. and USI American Holdings, Inc., with respect to their Old
Notes.
This will instruct you to tender the Old Notes held by you for the
account of the undersigned, upon and subject to the terms and conditions set
forth in the Prospectus and the related Letter of Transmittal.
Please tender the Old Notes held by you for my account as
indicated below:
<TABLE>
<S> <C>
AGGREGATE PRINCIPAL AMOUNT OF OLD NOTES
--------------------------------------------
7 1/8% Senior Notes due _________, 2003
(the "Old Notes") . . . . . . . . . ____________________________________________
|_| Please do not tender any Old
Notes held by you for my account
Dated:____________________, 1999
______________________________________________
______________________________________________
SIGNATURE(S)
______________________________________________
______________________________________________
______________________________________________
PLEASE PRINT NAME(S) HERE
______________________________________________
ADDRESS(ES)
______________________________________________
AREA CODE AND TELEPHONE NUMBER
______________________________________________
TAX IDENTIFICATION OR SOCIAL SECURITY NO(S).
</TABLE>
None of the Old Notes held by us for your account will be tendered
unless we receive written instructions from you to do so. Unless a specific
contrary instruction is given in the space provided, your signature(s) hereon
shall constitute an instruction to us to tender all the Old Notes held by
us for your account.
3
