Filed pursuant to Rule 424(b)(3)
File No. 333-70537
Exchange Offer for
$250,000,000 7-1/8% Senior Notes due 2003
of
U.S. INDUSTRIES, INC.
USI GLOBAL CORP.
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 12:00 midnight, New York City time,
on July 9, 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o All old notes that are validly tendered and not validly withdrawn will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o Tenders of old notes may be withdrawn at any time prior to the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 March 31, 1999, we had approximately $1.2 billion 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.
PLEASE REFER TO "RISK FACTORS" BEGINNING ON PAGE 8 OF THIS DOCUMENT FOR
CERTAIN IMPORTANT INFORMATION.
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 June 10, 1999.
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TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
PROSPECTUS SUMMARY...............................................................................................3
WHO WE ARE.......................................................................................................7
RISK FACTORS.....................................................................................................8
WHERE YOU CAN FIND MORE INFORMATION.............................................................................10
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.................................................................10
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS.................................................................11
USE OF PROCEEDS.................................................................................................11
SELECTED FINANCIAL DATA.........................................................................................13
UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STETEMENTS...........................................................14
CAPITALIZATION..................................................................................................23
RATIO OF EARNINGS TO FIXED CHARGES..............................................................................23
THE EXCHANGE OFFER..............................................................................................24
PROCEDURES FOR TENDERING OLD NOTES..............................................................................28
DESCRIPTION OF THE REGISTERED NOTES.............................................................................34
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS......................................................................56
NOTICE TO CANADIAN RESIDENTS....................................................................................58
LEGAL MATTERS...................................................................................................60
EXPERTS.........................................................................................................60
</TABLE>
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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 the prospectus 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 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
requirement 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 in the
exchange offer without delivering a
prospectus meeting the requirements of
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the Securities Act or without an
exemption from registration of your
notes from those requirements, you may
incur liability under the Securities
Act. We do not assume, or indemnify you
against, this liability. We will ask you
to represent to us by signing the letter
of transmittal that you meet all of the
conditions described in the first
sentence of this section when you elect
to participate in the exchange offer.
Each broker-dealer that receives
registered notes for its own account in
exchange for old notes which were
acquired by the 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 the 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 12:00 midnight, New York
City time, on July 9, 1999. We will not
extend this time period to a date later
than July 9, 1999.
Withdrawal........................... You may withdraw the tender of your old
notes at any time prior to 12:00
midnight, New York City time, on July 9,
1999, or the 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 year,
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.
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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
(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 12:00 midnight,
New York City time, on the expiration
date:
o a properly completed and signed letter
of transmittal, including all other
required documents, and one or more
outstanding certificates representing
old notes, or
o the documents necessary for compliance
with the guaranteed delivery procedures
described on page 20 of this prospectus.
If you hold your old notes through The
Depository Trust Company and you wish to
participate in the exchange offer, you
may do so through The Depository 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
though you had signed the letter of
transmittal.
Exchange Agent....................... The First Chicago Trust Company of New
York 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
be a taxable event for federal income
tax purposes. See "Material Federal
Income Tax Considerations."
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SUMMARY OF THE TERMS OF THE REGISTERED NOTES
Issuers............................... U.S. Industries, Inc.
USI Global Corp.
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 year, payable
semi-annually on each April 15 and
October 15, commencing April 15, 1999.
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 that 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."
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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 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--
Merger, Conveyance, Transfer or Lease."
Use of Proceeds....................... We will not receive any cash proceeds
from the exchange offer.
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; Georgia Boot and Durango
footwear; leather, metal and plastic automotive components; overhauled
aircraft engine bearings; and leadframes for the electronics industry.
RECENT DEVELOPMENT
On May 18, 1999, our Board of Directors announced that it had approved
a spinoff of our diversified businesses to our shareholders. These businesses
include Rexair, Inc. ("Rainbow" brand vacuum cleaners); Garden State Tanning,
Inc. and Leon Plastics, Inc. (automotive interiors); EJ Footwear Corp.
(including Georgia Boot Inc., Trimfoot Co. (infant footwear) and Lehigh Safety
Shoe Company (industrial protective footwear)); Huron Inc. and Bearing
Inspection, Inc. (precision engineering products); Bilt Best Products, Inc.;
Native Textiles Inc. and Jade Technologies Singapore Ltd. These entities had
combined revenues and operating income of $889 million and $32 million
(including nonrecurring, unusual and other related charges of $75 million).
Excluding USI Diversified and corporate expenses of $32 million, we had revenues
of $2.2 billion and operating income of $142 million (including nonrecurring and
unusual charges of $75 million).
Completion of the spin-off is conditioned upon our receipt of
approximately $600 million of proceeds from new third party financings by the
new USI Diversified company, principally through its repayment of existing
intercompany debt owed to us. We will use these proceeds to reduce our
outstanding debt, make acquisitions for our core businesses and continue our
share repurchase program. Completion of the spinoff is subject to the receipt of
a ruling from the Internal Revenue Service that the distribution will be tax
free to our shareholders. There is no certainty that the IRS will rule favorably
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with respect to our request. If the IRS does not rule favorably, we would
reconsider its then available alternatives. We anticipate the IRS ruling will be
received within four to six months but no later than one year. We will account
for our diversified businesses as discontinued operations if and when we receive
a favorable ruling. Mr. John Raos, our President and Chief Operating Officer,
will resign his position to become Chairman and Chief Executive Officer of USI
Diversified. It is expected that an Information Statement about the new company
will be filed with the Commission in June, providing additional details.
Our principal executive offices are located at 101 Wood Avenue South,
Iselin, New Jersey 08830, telephone number (732) 767-0700.
RISK FACTORS
You should carefully consider the following risk factors before making
the decision whether to exchange your notes, as well as all other information
and data included in this prospectus.
THE INDENTURE DOES NOT RESTRICT TRANSACTIONS WHICH COULD LEAD TO SIGNIFICANTLY
MORE DEBT AND A HIGHER RISK OF DEFAULT
Please be aware that the indenture does not prohibit or limit:
(1) the incurrence of secured or unsecured indebtedness by the
issuers or subsidiaries of the issuers that are defined as
"Unrestricted Securities" under the terms of the indenture,
(2) a change in control of the issuers or the guarantor or
(3) a transaction that is financed with a high proportion of
indebtedness involving the issuers or the guarantor.
Any of these transactions could result in significantly more debt and a less
favorable ratio of earnings to fixed charges, which could lead to a downgrade in
rating of U.S. Industries or its senior debt by nationally recognized rating
agencies. A downgrade in rating would be likely to lower the market value of the
notes. In addition, if we have higher fixed debt service charges, this may
restrict our ability to fund or obtain financing for working capital, capital
expenditures and general corporate purposes, making us more vulnerable to
economic downturns, competition and other market factors. These factors could
lead to an increased risk of default on the notes.
YOU MAY NOT BE ABLE TO SELL YOUR NOTES
There is no existing trading market for the registered notes and no
such market may develop. The absence of such market adversely affects the
liquidity of an investment in the notes. If a market for the registered notes
does develop, future trading prices will depend on many factors, including among
other things, prevailing interest rates and the market for similar securities,
general economic conditions and our financial condition and performance. We do
not intend to apply for listing of the registered notes on any securities
exchange or for quotation through any over-the-counter market.
IF THE PROPOSED SPIN-OFF IS COMPLETED, WE WILL NOT BE ABLE TO USE THE CASH FLOWS
FROM USI DIVERSIFIED BUSINESSES TO MAKE PAYMENTS ON THE NOTES OR OUR OTHER
OBLIGATIONS.
Following completion of the spin-off transaction described under
"Recent Development," the businesses of USI Diversified will no longer be part
of our company. Therefore, the cash flows they generate will not be available to
us to make payments on the notes or our other obligations. We believe that we
will be able to satisfy our obligations, including interest and principal
payments on the notes, as they come due, based upon the historical and
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anticipated performance of our other businesses. However, we cannot assure you
of this ability. See "Disclosure Regarding Forward-Looking Statements." The
indenture does not require us to obtain, and we will not seek, your consent to
complete the spin-off transactions. Similarly, we are not required by applicable
law to obtain, and will not seek, the consent of our shareholders.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational and reporting requirements of the
Securities Exchange Act of 1934. As a result, we 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 the
notes to be issued in the exchange offer with the SEC. 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 update and supersede this
information. Any updated or superseded information shall not be considered a
part of this prospectus except as 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/A for the year
ended October 3, 1998 filed June 3, 1999;
3. Our Proxy Statement, dated January 4, 1999;
4. Our Quarterly Report on Form 10-Q/A for the fiscal quarter
ended January 2, 1999 filed May 17, 1999;
5. Our Quarterly Report on Form 10-Q/A for the fiscal quarter
ended April 3, 1999 filed June 9, 1999; and
6. Our Current Report on Form 8-K filed on May 13, 1999 which
includes information about our second quarter earnings, our
share repurchase programs, the sale of the Ertl Company and
the acquisitions of Dual-Lite and True Temper.
We incorporate by reference all documents filed in accordance with
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.
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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. We will not provide
copies of the exhibits to those documents unless the exhibits are specifically
incorporated by reference in those documents. Requests for 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.
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 considered 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
those forward-looking statements, including factors which are outside our
control, such as:
o interest rates,
o foreign currency exchange rates,
o instability in domestic and foreign financial markets,
o consumer spending patterns,
o availability of consumer and commercial credit,
o levels of residential and commercial construction,
o levels of automotive production,
o changes in raw material costs and Year 2000 issues,
o 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
efficiencies and cost savings by eliminating redundant marketing operations 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 these 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.
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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.
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SELECTED FINANCIAL DATA
The following table sets forth our unaudited consolidated (combined)
historical selected financial data.
<TABLE>
<CAPTION>
For the Six
Months Ended
March 31 For the Fiscal Years Ended September 30
---------- --------------------------------------------------
1999 1998 1998 (1) 1997 1996 1995 (5) 1994
---- ---- -------- ---- ---- -------- ----
(unaudited) (in millions, except per share)
<S> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Net Sales........................ $ 1,598 $ 1,485 $3,135 $2,521 $2,169 $1,974 $1,853
Operating Income................. 125 138 142 268 238 93 164
Income (loss) from continuing
operations..................... 54 64 3 125 103 (50) 32
Net income (loss)................ 41 64 (44) 252 138 (72) 87
Income from continuing
operations per share (2)
Basic........................ 0.56 0.68 .03 1.35 1.08 -- --
Diluted...................... 0.55 0.66 .03 1.31 1.06 -- --
Net Income (loss) per
share(2)
Basic........................ 0.43 0.68 (.46) 2.73 1.45 -- --
Diluted...................... 0.42 0.66 (.45) 2.64 1.42 -- --
Cash dividend declared per
share (4)...................... 0.10 0.10 .20 .05 -- -- --
BALANCE SHEET DATA (AT PERIOD END):
Cash and cash equivalents........ $ 32 $ 61 $ 44 $ 67 $ 57 $ 67 $ 34
Working capital.................. 983 877 876 731 779 807 1,188
Total assets..................... 2,916 2,844 2,776 2,499 2,477 2,203 2,566
Total debt (3)................... 1,202 985 966 746 930 1,000 997
Stockholders' equity/Invested
capital........................ 900 1,073 960 950 758 643 1,022
</TABLE>
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(1) The fiscal year ended September 30, 1998 included non-recurring and
unusual after-tax charges of $131 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 $177 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 that
information is not indicative of our 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) We changed our 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 our lighting products operations.
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U.S. INDUSTRIES, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The accompanying pro forma condensed consolidated financial statements
of U.S. Industries, Inc. illustrate the pro forma effect of a tax free spinoff
of the diversified businesses and the repayment of approximately $600 million of
debt from the proceeds of new third party financing by the new Diversified
company.
The unaudited pro forma condensed consolidated balance sheet has been
prepared assuming that the transactions occurred on the balance sheet date. The
pro forma condensed consolidated statements of operations have been prepared
assuming that the transactions occurred at the beginning of the periods
presented.
The unaudited pro forma condensed consolidated financial statements
have been prepared using assumptions deemed appropriate and are presented herein
for illustrative purposes only. These unaudited pro forma financial statements
are not necessarily indicative of our future financial position or results of
operations, or of our financial position or results of operations that would
have actually been reported had the events reported in this section occurred as
of the dates indicated. Completion of the spinoff is conditioned upon our
receipt of approximately $600 million of proceeds from new third party financing
by the new USI Diversified Company, principally throught its repayment of
existing intercompany debt. The spinoff is subject to receipt of a ruling from
the Internal Revenue Service that the distribution will be tax free to our
shareholders. There is no certainty that the IRS will rule favorably with
respect to our request. If the IRS does not rule favorably, we would reconsider
our then available alternatives. We anticipate the IRS ruling would be received
within four to six months but no later than one year. We will account for our
diversified businesses as discontinued operations if and when we receive a
favorable ruling.
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U.S. INDUSTRIES, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
AS OF MARCH 31, 1999
(IN MILLIONS)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS CONSOLIDATED
---------- ----------- ------------
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 32 $ 11 $ 21
Trade receivables, net 655 140 515
Inventories, net 608 136 472
Deferred income taxes 74 8 66
Net assets held for disposition 97 - 97
Other current assets 74 16 58
---------- ------------- ---------------
Total current assets 1,540 311 1,229
Property, plant and equipment, net 535 135 400
Deferred income taxes 16 (9) 25
Other assets 208 86 122
Goodwill, net 617 113 504
---------- ------------- ---------------
Total assets $ 2,916 $ 636 $ 2,280
========== ============= ===============
LIABILITIES & STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable $ 10 $ - $ 10
Current maturities of long-term debt 3 1 2
Trade accounts payable 236 47 189
Accrued expenses and other liabilities 262 53 209
Income taxes payable 46 6 40
---------- ------------- ---------------
Total current liabilities 557 107 450
Long-term debt 1,189 600 589
Other liabilities 270 43 227
---------- ------------- ---------------
Total liabilities 2,016 750 1,266
Stockholders' equity 900 (114) 1,014
---------- ------------- ---------------
Total liabilities and stockholders' equity $ 2,916 $ 636 $ 2,280
========== ============= ===============
</TABLE>
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U.S. INDUSTRIES, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
SIX MONTHS ENDED MARCH 31, 1999
(IN MILLIONS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS CONSOLIDATED
---------- ----------- ------------
<S> <C> <C> <C>
Net sales $ 1,598 $ 448 $ 1,150
Operating costs and expenses
Cost of products sold 1,120 337 783
Selling, general and administrative expenses 353 64 289
---------- --------------- ----------------
Operating income 125 47 78
Interest expense 37 16 21
Interest income (2) (2)
Other (income) expense, net 1 (1)
---------- --------------- ----------------
Income before income taxes and discontinued operations 90 30 60
Provision for income taxes 36 12 24
---------- --------------- ----------------
Income from continuing operations $ 54 $ 18 $ 36
========== =============== ================
Earnings per share from continuing operations
Basic $ 0.56 $ 0.38
Diluted $ 0.55 $ 0.37
Weighted Average Shares Outstanding
Basic 95.8 95.8
Diluted 97.4 97.4
</TABLE>
16
<PAGE>
U.S. INDUSTRIES, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
SIX MONTHS ENDED MARCH 31, 1998
(IN MILLIONS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS CONSOLIDATED
---------- ----------- ------------
<S> <C> <C> <C>
Net sales $ 1,485 $ 450 $ 1,035
Operating costs and expenses
Cost of products sold 1,039 331 708
Selling, general and administrative expenses 308 56 252
---------- -------------- ----------------
Operating income 138 63 75
Interest expense 33 22 11
Interest income (4) - (4)
Other income, net (1) (1) -
---------- -------------- ----------------
Income before income taxes and discontinued operations 110 42 68
Provision for income taxes 46 18 28
---------- -------------- ----------------
Income from continuing operations $ 64 $ 24 $ 40
========== ============== ================
Earnings per share from continuing operations
Basic $ 0.68 $ 0.43
Diluted $ 0.66 $ 0.41
Weighted Average Shares Outstanding
Basic 93.8 93.8
Diluted 97.0 97.0
</TABLE>
17
<PAGE>
U.S. INDUSTRIES, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED SEPTEMBER 30, 1998
(IN MILLIONS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS CONSOLIDATED
---------- ----------- ------------
<S> <C> <C> <C>
Net sales $ 3,135 $ 889 $ 2,246
Operating costs and expenses
Cost of products sold 2,202 666 1,536
Selling, general and administrative expenses 649 128 521
Goodwill impairment and non-recurring and unusual charges 142 63 79
----------- ------------ ------------
Operating income 142 32 110
Interest expense 69 41 28
Interest income (8) - (8)
Other expense, net 3 1 2
----------- ------------ ------------
Income before income taxes and discontinued operations 78 (10) 88
Provision for income taxes 75 20 55
----------- ------------ ------------
Income from continuing operations $ 3 $ (30) $ 33
=========== ============ ============
Earnings per share from continuing operations
Basic $ 0.03 $ 0.35
Diluted $ 0.03 $ 0.34
Weighted Average Shares Outstanding
Basic 95.4 95.4
Diluted 98.2 98.2
</TABLE>
18
<PAGE>
U.S. INDUSTRIES, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED SEPTEMBER 30, 1997
(IN MILLIONS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS CONSOLIDATED
---------- ----------- ------------
<S> <C> <C> <C>
Net sales $ 2,521 $ 809 $ 1,712
Operating costs and expenses
Cost of products sold 1,739 573 1,166
Selling, general and administrative expenses 514 117 397
----------- --------------- ----------------
Operating income 268 119 149
Interest expense 59 41 18
Interest income (7) - (7)
Gain on sale of subsidiary shares (1) (1) -
Other (income) expense, net (2) 1 (3)
----------- --------------- ----------------
Income before income taxes and discontinued operations 219 78 141
Provision for income taxes 94 34 60
----------- --------------- ----------------
Income from continuing operations $ 125 $ 44 $ 81
=========== =============== ================
Earnings per share from continuing operations
Basic $ 1.35 $ 0.88
Diluted $ 1.31 $ 0.85
Weighted Average Shares Outstanding
Basic 92.5 92.5
Diluted 95.5 95.5
</TABLE>
19
<PAGE>
U.S. INDUSTRIES, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED SEPTEMBER 30, 1996
(IN MILLIONS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS CONSOLIDATED
---------- ----------- ------------
<S> <C> <C> <C>
Net sales $ 2,169 $ 738 $ 1,431
Operating costs and expenses
Cost of products sold 1,488 521 967
Selling, general and administrative expenses 443 107 336
------------ -------------- ---------------
Operating income 238 110 128
Interest expense 64 40 24
Interest income (11) - (11)
Other (income) expense, net - 2 (2)
------------ -------------- ---------------
Income before income taxes and discontinued operations 185 68 117
Provision for income taxes 82 30 52
------------ -------------- ---------------
Income from continuing operations $ 103 $ 38 $ 65
============ ============== ===============
Earnings per share from continuing operations
Basic $ 1.08 $ 0.68
Diluted $ 1.06 $ 0.67
Weighted Average Shares Outstanding
Basic 95.2 95.2
Diluted 97.1 97.1
</TABLE>
20
<PAGE>
U.S. INDUSTRIES, INC.
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(a) Segment Data - Diversified Operations
The pro forma adjustment column includes the sales and
operating income of our Diversified Segment (see
Note 13 to the Consolidated Financial Statements in our
Form 10-K/A) plus the sales and operating income of the
Company's Bilt Best window and metal component fabrication
businesses. The window and metal fabrication businesses are
separate businesses currently included in the Hardware segment
which will be spunoff with the Diversified businesses. The
sales of these businesses were $50 million and $12 million and
the operating income was $3 million and $1 million for the six
months ended March 31, 1999 and 1998, respectively. For the
years ended September 30, 1998 and 1997, the sales of these
businesses were $56 million and $13 million, respectively, and
the operating income was $1 million for the years ended
September 30, 1998 and 1997, respectively.
(b) Selling, General and Administrative Expenses
No adjustments have been made to these expenses from the
elimination of any costs which may result from the downsizing
of the corporate office due to the spinoff, nor have any costs
been added for costs which may be incurred in connection with
the spinoff.
(c) For the year ended September 30, 1998, we incurred
merger, restructuring and other related costs, of which $75
million were directly attributable to the Diversified
businesses. See Note 5 to the Form 10-K/A for the year ended
September 30, 1998.
(d) Interest Expense
Represents a reduction in interest expense as a result of the
application of cash to be received from the new Diversified
company which will be applied to reduce amounts outstanding
under our various debt agreements. The interest rate
assumed for this adjustment approximates our average
borrowing rate under revolving credit agreements or short-term
borrowing arrangements for the periods presented. The
appropriate weighted average interest rates used were 5.5% and
7.0% for the six months ended March 31, 1999 and 1998,
respectively, and 7.0% for the years ended September 30, 1998,
1997 and 1996.
(e) Income Taxes
Reflects the tax impact of pro forma adjustments assuming
our effective tax rate of 40% and 42% for the six months
ended March 31, 1999 and 1998, respectively, and 41%, 43% and
44% for the years ended September 30, 1998, 1997 and 1996,
respectively. No consideration has been given to any changes
in our effective rates from the elimination of any
tax benefits or charges associated with the inclusion of the
Diversified companies in our consolidated federal tax return
except for the adjustment to reflect the non-deductible
goodwill impairment charge at Garden State Tanning in the
year ended September 30, 1998.
(f) Long-term Debt
Represents the use of cash received from the new Diversified
company to reduce outstanding indebtedness. Certain
intercompany indebtedness is to be repaid by the new
Diversified company immediately prior to the spinoff.
(g) Stockholders' Equity
Represents the dividend of the historical net carrying value
of the assets and liabilities of the new Diversified company
after a reduction for assumed issuance of debt by the
Diversified company with the cash proceeds to be retained by
us.
21
<PAGE>
CAPITALIZATION
The following table, which is unaudited, presents the consolidated
capitalization of our company and its subsidiaries at March 31, 1999, including
U.S. Industries, Inc. and each of its subsidiaries. It reflects the private
offering of the 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/A and the Form 10-Q/A. See "Incorporation of Certain Documents
by Reference."
($ in millions)
Cash and cash equivalents $ 32
===========
Short-term debt $ 13
Long-term debt:
Credit Facility: 561
7 1/4% Notes Due 2006 123
7 1/8% Notes Due 2003 247
Other 258
-----------
Total debt 1,202
-----------
Stockholders' equity 900
-----------
Total capitalization $ 2,102
===========
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 six months
ended March 31, 1999 and 1998:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
FISCAL YEAR ENDED SEPTEMBER 30, MARCH 31,
- ------------------------------------------------------------------------------------- --------------------------------
1998 1997 1996 1995 1994 1999 1998
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.0x 4.3x 3.6x 1.0x 1.6x 3.2x 3.9x
</TABLE>
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 $142 million. Before taking into account those
charges, the ratio of earnings to fixed charges for fiscal 1998 would have been
3.8x. 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 those charges, the ratio of earnings to
fixed charges for fiscal 1995 would have been 1.9x.
22
<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
We issued the old notes on October 27, 1998. 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 described in the next paragraph, 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.
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 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 this 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 in the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of the registered notes. The letter of
transmittal accompanying this prospectus states that by acknowledging that it
will deliver a prospectus and by delivering the prospectus, a broker-dealer will
not be considered to admit that it is acting in the capacity of an "underwriter"
within the meaning of Section 2(a)(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 the old notes were acquired by the broker-dealer as
a result of market-making activities or other trading activities. Under the
registration rights agreement, we agreed to make this prospectus available to
any broker-dealer for use in connection with these resales.
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 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 in accordance with Rule 415 under
the Securities Act. If we are obligated to file a shelf registration statement,
23
<PAGE>
we will be required to keep the shelf registration statement effective for a
period of two years or shorter period that will terminate when all of the old
notes covered by the shelf registration statement have been sold under the
registration statement. Other than as described 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 of all of the conditions of the exchange offer or the
waiver by us of those conditions, 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 in 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 considered 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 under those acts.
For purposes of the exchange offer, we will be considered to have
accepted validly tendered old notes when we have given oral or written notice of
acceptance 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 registered notes to those 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 any unaccepted old notes, without expense, to
the tendering holder 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 described below under
"--Transfer Taxes," transfer taxes with respect to the exchange of old notes in
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."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "expiration date" shall mean 12:00 midnight, New York City
time, on July 9, 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.
24
<PAGE>
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 described 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 each registered
holder 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 12:00 midnight, New York City time, on the expiration date in
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 of these conditions, subject
to applicable law. We also may waive in whole or in part at any time and from
time to time any of these conditions 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 these
rights shall not be considered to be a waiver of any of these rights and shall
be considered 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 old notes, if at the
time the old notes are tendered 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.
25
<PAGE>
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 in 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 October 27,
1998 and the last date on which we or any of our directors, officers or
significant stockholders was the owner of the untendered old notes, the
untendered 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 the resale,
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) in accordance with the limitations on resale provided by Rule 144
under the Securities Act (if available),
(5) in accordance with the resale provisions of Rule 904 of Regulation
S under the Securities Act,
(6) in accordance with an effective registration statement under the
Securities Act, or
(7) in accordance with any other available exemption from the
registration requirements of the Securities Act.
Each resale must be made in 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.
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
completion of the exchange offer. We will amortize the expenses of the exchange
offer over the term of the registered notes.
26
<PAGE>
PROCEDURES FOR TENDERING OLD NOTES
TENDERING OLD NOTES
The tender of old notes in accordance with any of the procedures
described 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 described 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 DESCRIBED 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 SIGNED LETTER OF
TRANSMITTAL, WE MAY, AT OUR OPTION, REJECT YOUR 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 CONSIDERED 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 described 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 tender
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 tender old notes by:
(1) electronically transmitting its acceptance through DTC's Automated
Tender Offer Program, or
(2) complying with the guaranteed delivery procedures described below
and in the notice of guaranteed delivery. See "--Guaranteed
Delivery Procedures--Notes held through DTC."
Although you may tender interests in the old notes into the exchange
agent's account through DTC's Automated Tender Offer Program, an agent's message
in connection with your tender, and any other required documents, must be, in
any case, transmitted to and received by the exchange agent at its address
listed under "--Exchange Agent." Delivery of documents to DTC does not
constitute delivery to the exchange agent. The confirmation of a tender into the
exchange agent's account at DTC as described above is referred to in this
prospectus 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 Program that the
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
that agreement against the participants.
27
<PAGE>
NOTES HELD BY HOLDERS. Each holder must
(1) complete and sign the letter of transmittal, and mail or
deliver the 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 listed under "--Exchange Agent,"
or
(2) comply with the guaranteed delivery procedures described below
and in the notice of guaranteed delivery. See "--Guaranteed
Delivery Procedures--Notes held by Holders."
All signatures on the 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 the letter of
transmittal need not be guaranteed if old notes are tendered for the account of
an "eligible institution."
If the letter of transmittal or any old note is signed by a corporation
or person acting in a fiduciary or representative capacity, that person must
indicate that capacity when signing, and proper evidence satisfactory to us of
the authority of that 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. If the notes
are to be issued 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 the holder and
(4) the holder has no understanding 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, 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 our 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
binding. Unless waived, any irregularities in connection with tenders must be
cured within the time period we determine. We, along with the exchange agent,
28
<PAGE>
shall be under no duty to give notification of defects in a tender and shall not
incur liabilities for failure to give notification. Tenders of old notes will
not be considered complete until any 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
letter of transmittal, delivery will be considered 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 (each an eligible
institution);
(2) prior to the expiration date, the exchange agent receives by mail,
hand delivery, facsimile transmission or overnight courier from an
eligible institution a properly completed and signed notice of
guaranteed delivery substantially in the form provided with this
prospectus; and
(3) book-entry confirmation and an agent's message are received by the
exchange agent within three NYSE trading days after the date of
the execution of the notice of guaranteed delivery.
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NOTES HELD BY HOLDERS. Holders who wish to tender their old notes but
(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 the eligible institution a properly completed
and signed 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 12:00
midnight, New York City time, on the expiration date. Withdrawals may be made of
any portion of tendered old notes in integral multiples of $1,000. Any old notes
properly withdrawn will be considered to be invalidity 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 12:00 midnight, New York City time, on the expiration date, withdraw
its tender of old notes by delivering to the exchange agent, at its address
listed under "--Exchange Agent," a written or facsimile notice of withdrawal of
that instruction. The notice of withdrawal must contain:
o the name and number of the participant,
o the principal amount of old notes to which the withdrawal
related, and
o the signature of the participant.
Receipt of this 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 12:00 midnight, New York City time, on the expiration date, by
delivering to the exchange agent, at its address listed under "--Exchange
Agent," a written or facsimile notice of withdrawal. The 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 the tendered old notes and the aggregate
principal amount represented by the tendered old notes and
(3) be signed by the holder of the tendered old notes in the same
manner, including any required signature guaranties, as the
original signature on the letter of transmittal by which the 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 the
person to effect the revocation on behalf of the 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 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 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 to which the 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, the person must indicate this
capacity when signing and must submit appropriate evidence of authority to
execute the notice of withdrawal. A participant in DTC or a holder may withdraw
an instruction or a tender only if the withdrawal complies with the provisions
of this prospectus.
A tender of old notes by a participant in DTC or a holder which has
been withdrawn may be reinstated only by transmitting a new acceptance through
DTC's Automated Tender Offer Program or by signing and delivering a new letter
of transmittal in accordance with the procedures described in this prospectus.
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EXCHANGE AGENT
The First Chicago Trust Company of New York 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:
The First Chicago Trust Company of New York, as Exchange Agent
Corporate Actions, Suite 4660, P.O. Box 2569
Jersey City, New Jersey 07303-2569
By Federal Express or Courier:
The First Chicago Trust Company of New York
14 Wall Street, 8th Floor
New York, New York 10005
By Hand:
The First Chicago Trust Company of New York
c/o Securities Transfer and Reporting Services, Inc.
Attn: Corporate Actions
100 William Street
New York, New York 10038
Facsimile: By Telephone:
(201) 222-4720 (201) 222-4707
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 their 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 the 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 and the form of
first supplemental indenture, as exhibits 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., USI Global Corp. and USI American Holdings,
Inc. and are used interchangeably with 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 year, payable on each April 15 and October 15, 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 to the payment as its address appears in the
security register. Our office or agency in the City of New York 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. There is no
minimum principal amount requirement to participate in the exchange offer. 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 that registration, transfer, exchange or redemption.
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.
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
We may issue additional series of notes under the indenture. 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 of these additional notes may be combined
with existing notes to form a single series of notes under the indenture.
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GUARANTEE
Our obligations under the notes are fully and unconditionally
guaranteed by USI Atlantic. The guarantee is 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 under its guarantee could be void and required to be returned to
USI Atlantic, or to a fund for the benefit of its creditors.
A NEW SUBSIDIARY HAS BECOME A CO-ISSUER
On April 30, 1999, USI American Holdings transferred all of its assets
to a new subsidiary of U.S. Industries, USI Global Corp. USI American Holdings
received shares of preferred stock of USI Global Corp. in exchange for its
assets. In connection with the asset transfer, USI Global Corp. executed the
first supplemental indenture, the form of which has been filed as an exhibit to
the registration statement which includes this prospectus, and is now obligated
under the indenture and the notes equally with U.S. Industries and USI American
Holdings. Neither of the issuers, nor the guarantor, was released from its
obligations under the indenture, the notes or the guarantee in connection with
the transfer of assets to USI Global Corp.
RELEASE OF USI ATLANTIC AS GUARANTOR AND USI AMERICAN HOLDINGS AND USI GLOBAL
CORP. AS CO-ISSUERS
USI Atlantic, USI American Holdings and USI Global Corp. can be
released from their respective obligations under the indenture under certain
circumstances. Following that 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, and we do not believe that it
will adversely affect the holders of the notes. The purpose of USI Atlantic, USI
American Holdings and USI Global Corp. serving as obligors under the indenture
is to give the holders of the notes an equivalent ranking with holders of
indebtedness of those corporations which existed prior to the issuance of the
notes. If that pre-existing indebtedness is repaid or USI Atlantic, USI American
Holdings and USI Global Corp. are released from all obligations under that
indebtedness, there is no longer a reason for USI Atlantic, USI American
Holdings and USI Global Corp., each of which is a holding company, to remain
obligated under the indenture.
USI Atlantic will be released from its obligations under the guarantee
or USI American Holdings and USI Global Corp. will be released from their
obligations as co-issuers of the notes, as the case may be, if:
(1) the obligations of the issuers under the indenture are assumed by
a person or entity other than one of our subsidiaries,
(2) USI Atlantic, USI American Holdings or USI Global Corp., as the
case may be, is disposed of in a transaction that results in USI
Atlantic, USI American Holdings, or USI Global Corp., as the case
may be, no longer being a subsidiary of U.S. Industries, or all or
substantially all the assets of USI Atlantic, USI American
Holdings or USI Global Corp., as the case may be, are disposed of
other than to U.S. Industries or one of its subsidiaries,
(3) all amounts outstanding under the 7 1/4% Senior Notes due 2006,
the Credit Facility and any indebtedness incurred to extend,
renew, refinance or refund the 7 1/4% Senior Notes due 2006 or the
Credit Facility are repaid, or
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(4) USI Atlantic is released from all obligations under the 7 1/4%
Senior Notes due 2006, the Credit Facility and any indebtedness
incurred to extend, renew, refinance or refund the 7 1/4% Senior
Notes due 2006 or the Credit Facility.
Immediately following any 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 under
clause (3) or (4), we must certify to the trustee that immediately following the
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 and/or USI Global Corp., USI
American Holdings and/or USI Global Corp. will not be an obligor
under any Restricted Subsidiary Funded Debt in excess of the
amount of the Debt Basket.
RANKING
The notes are senior unsecured obligations of the issuers and rank
equally to all other existing and future unsecured indebtedness of the issuers
that is not junior in ranking to that indebtedness unless the holders of that
indebtedness agree to give priority to the notes.
The guarantee is a senior unsecured obligation of the guarantor and
ranks equally to all other existing and future unsecured indebtedness of the
guarantor that is not junior in ranking to that indebtedness and is entitled to
be paid before all junior indebtedness of the guarantor.
The notes and the guarantee are effectively junior to all existing and
future
(1) secured indebtedness of the issuers and the guarantor, to the
extent of the value of the assets securing the indebtedness and
(2) indebtedness of any subsidiaries of the issuers and of the
guarantor other than USI American Holdings and USI Global Corp.
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 the subsidiary's liquidation or
recapitalization will be subject to the prior claims of that subsidiary's
creditors. At March 31, 1999, the total indebtedness of the subsidiaries of U.S.
Industries other than USI American Holdings and USI Atlantic was approximately
$58 million.
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
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(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 that date.
In the case of any partial redemption, the trustee will select the
notes for redemption on a pro rata basis, by lot or 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 that note
shall state the portion of the principal amount of that note to be redeemed. The
holder of the redeemed note will receive a new note in principal amount equal to
the unredeemed portion of that note upon cancellation of the original note.
For this purpose, the following terms shall have the following
meanings:
"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 that
redemption date, as stated 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 that release or a successor is not published or does not
contain those prices on that business day
(A) the average of the Reference Treasury Dealer Quotations for
that redemption date, after excluding the highest and
lowest Reference Treasury Dealer Quotations, or
(B) if the trustee obtains fewer than three Reference Treasury
Dealer Quotations, the average of all quotations.
"REFERENCE TREASURY DEALER" means Credit Suisse First Boston
Corporation and its successors and/or any 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 the 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 the Reference Treasury Dealer at 5:00 p.m. EST on the
third business day preceding the redemption date.
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"TREASURY RATE" means, with respect to any redemption date, the yearly
rate equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue expressed as
a percentage of its principal amount equal to the Comparable Treasury Price for
the redemption date.
The notice of redemption will describe 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.
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 tax treaty or convention, of the United Kingdom or any
Other Jurisdiction, as defined 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 those laws, tax
treaty or convention,
which change or amendment becomes effective on or after the original issuance
date of the notes or, in certain circumstances, the later date on which any
assignee of the issuers, the guarantor or a successor corporation of either of
them as permitted under the indenture, it is determined, by us, the guarantor or
the assignee which terms, for purposes of the remainder of this paragraph,
include any successor to us, the guarantor or the assignee 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 the 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, the later date on which a corporation
becomes a successor or an assignee, the circumstances
described in clause (1) would exist.
MATERIAL 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 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. We shall secure any of those notes:
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(1) equally and ratably with or prior in right of payment to the debt
secured by our property or assets for so long as the debt shall be
secured, or
(2) if payment on the debt is made only after payments on the notes,
prior in right of payment to the debt secured by our property or
assets for so long as that debt shall be secured.
These 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 that Person is
merged into or combined with either issuer or a Restricted
Subsidiary, or becomes a Restricted Subsidiary of either issuer,
and not in anticipation of or in connection with the merger or
combination, provided that the debt secured by the lien is
otherwise permitted to be incurred under the indenture;
(5) liens on property existing immediately prior to the time of the
acquisition of that property from a person that is not a director,
officer, significant shareholder or other person closely related
to the issuers and not incurred in anticipation of or in
connection with the financing of the acquisition of the property,
provided that the debt secured by the lien is otherwise permitted
to be incurred under the indenture;
(6) liens to secure debt incurred to finance all or any part of the
purchase price or the cost of construction or improvement of the
property subject to the liens and, in the case of a Restricted
Subsidiary all or substantially all of whose assets consist of the
property, any lien on ownership interests or investments in the
Restricted Subsidiary incurred in connection with the acquisition
or construction of the property, and the incidence of the debt is
otherwise permitted under the indenture and the debt is incurred
prior to, at the time of, or within 180 days after, the
acquisition of the property, the completion of the construction or
the making of the 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 in accordance with 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 similar obligations incurred in the
ordinary course of business;
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(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;
(13) liens securing documentary letters of credit; provided the liens
attach only to the property or goods to which the 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 clauses (1) through (14) inclusive, so long as
(a) the lien does not extend to any additional property other
than property attributable to improvements, alterations and
repairs and
(b) the principal amount of the debt secured under this clause
(15) shall not exceed the principal amount of debt
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 the extension,
renewal, refinancing or refunding at the time of the
extension, renewal, refinancing or refunding.
In addition, we and our Restricted Subsidiaries may incur a lien to
secure any debt, without securing the notes, if, after giving effect to the
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 under 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 under clauses (1), (2) and
(3) described below under "--Limitation on Sale and Leaseback
Transactions" does not exceed 15% of Consolidated Net Tangible
Assets. That amount is referred to in this prospectus as the "Lien
Basket." The Lien Basket, however, shall be reduced, without
duplication, by the amount of outstanding Funded Debt incurred
from time to time under 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 of the following conditions are met:
(1) (A) the Attributable Debt of the issuers and their Restricted
Subsidiaries in respect of the particular sale and leaseback
transaction and all other sale and leaseback transactions entered
into after October 27, 1998 other than sale and leaseback
transactions permitted by paragraph (2) or (3) below,
PLUS
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(B) the aggregate principal amount of Funded Debt secured by
liens on Principal Properties and Restricted Securities
then outstanding excluding any Funded Debt secured by
Permitted Liens without equally and ratably securing the
notes,
would not exceed 15% of Consolidated Net Tangible Assets. This amount is
referred to in this prospectus as 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
(A) the net proceeds of the sale or transfer or
(B) the fair market value of the Principal Property that was
sold and leased back at the time of entering into the 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 has the
following characteristics:
(a) senior or equal in right of payment to the notes or debt of
a Restricted Subsidiary and
(b) having a stated maturity more than 12 months from the date
of the application or which is extendible at the option of
the obligor on the debt to a date more than 12 months from
the date of the 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
regarded as a refunding operation or anticipated refunding operation for the
purposes of any provision limiting our right to redeem notes of any one or more
series when the redemption involves a refunding operation or anticipated
refunding operation. The amount to be applied shall be reduced by:
(a) the principal amount of notes delivered within 120 days
after the sale or transfer to the trustee for retirement
and cancellation, and
(b) the principal amount of any of the debt of the issuers or a
Restricted Subsidiary, other than notes, voluntarily
retired by us or a Restricted Subsidiary within 120 days
after the sale or transfer.
Notwithstanding the preceding discussion, no retirement referred to in
this paragraph (2) may be effected by payment at maturity or any mandatory
prepayment provision; or
(3) the issuers, within 180 days prior or subsequent to the sale or
transfer, apply or cause a Restricted Subsidiary to apply an
amount equal to the net proceeds of the sale or transfer to an
investment in another Principal Property; provided, however, that
this exception shall apply only if the proceeds invested in the
other Principal Property shall not exceed the total acquisition,
alteration, repair and construction cost of the issuers or any
Restricted Subsidiary in the other Principal Property less amounts
secured by any purchase money or construction mortgage on the
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
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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 that Principal Property by us
to that third-party or to any Person to whom funds have been or are to be
advanced by that third-party on the security of that Principal Property.
This provision will not prohibit a lease for a temporary period not to
exceed three years, if by the end of the three-year period it is intended that
the use of the 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. Any
Restricted Subsidiary may, however, incur the following Funded Debt:
(1) Funded Debt of any Restricted Subsidiary constituting Existing
Funded Debt;
(2) Funded Debt incurred by a Special Purpose Funding Subsidiary,
provided that the Restricted Subsidiary remains at all times a
Special Purpose Funding Subsidiary;
(3) Funded Debt owed by a Restricted Subsidiary to the guarantor, any
issuer or a Wholly-Owned Subsidiary of either of the guarantor or
any issuer; provided that the Funded Debt is at all times held by
the guarantor, any issuer or a Person which is a Wholly-Owned
Subsidiary of either of us; provided, further, that upon either
(A) the transfer or other disposition by the guarantor, any
issuer or Wholly-Owned Subsidiary of any of this Funded
Debt to a Person other than the guarantor, any issuer or
another Wholly-Owned Subsidiary of any of us, or
(B) the issuance, sale, lease, transfer or other disposition of
shares, other than directors' qualifying shares, of Capital
Stock, including by merger or other business combination of
the Wholly-Owned Subsidiary, to a Person other than the
guarantor, any issuer or another Wholly-Owned Subsidiary,
the provisions of this clause (3) shall no longer be
applicable to that Funded Debt and that Funded Debt shall
be considered incurred at the time of the transfer or other
disposition;
(4) Funded Debt incurred by a Person before that Person became a
Restricted Subsidiary in an acquisition from a person that is not
an officer, director, significant shareholder or other person
closely related to the issuers whether through a stock
acquisition, merger, business combination or otherwise, after
October 27, 1998; provided that the Funded Debt was not incurred
in anticipation of or in connection with and was outstanding prior
to the 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 any issuer prior to, or within 180 days after,
the time of that acquisition, purchase, improvement or
development;
(6) Funded Debt incurred to extend, renew, refinance or refund, in
whole or in part, any Funded Debt referred to in clauses (1), (4)
and (5), provided that the principal amount of the Funded Debt
incurred under this clause (6) shall not exceed the principal
amount of Funded Debt 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 the
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extension, renewal, refinancing or refunding at the time of the
extension, renewal, refinancing or refunding; and
(7) Funded Debt not otherwise permitted under the exceptions described
above in an aggregate principal amount which, when aggregated with
all other Funded Debt not otherwise permitted under the exceptions
described above of all of our Restricted Subsidiaries then
outstanding does not exceed 15% of Consolidated Net Tangible
Assets. This amount is referred to in this prospectus as the "Debt
Basket." 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 under the Leaseback Basket, in each
case to the extent that secured debt and that Attributable Debt
may from time to time be outstanding.
EVENTS OF DEFAULT
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 that
series, or any related coupon, when the interest or coupon becomes
due and payable, which default continues for a period of 30 days;
(2) default in the payment of the principal of or premium, if any, on
the notes of that series at their maturity which default continues
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 that series other than a
default in the performance, or breach of a covenant or agreement
which is specifically dealt with elsewhere, which default or
breach continues for a period of 60 days after there has been
given, by registered or certified mail, to the issuers or the
guarantor, by the trustee or to the issuers or the guarantor and
the trustee for that series of notes by the holders of at least
25% in principal amount of all Outstanding notes of that series a
written notice specifying the default or breach and requiring it
to be remedied and stating that the 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
any issuer or any Restricted Subsidiary of any issuer, which Debt
is outstanding in a principal amount in excess of $25,000,000 in
the aggregate, and the default results in the 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 that 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 any issuer or any Restricted Subsidiary of any
issuer, 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 those assets in lieu of foreclosure;
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(6) final judgments or orders rendered against any 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 that judgment or order or
(b) there shall have been a period of 60 days during which a
stay of enforcement of the 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 with jurisdiction
(a) adjudging any of the issuers or the guarantor as bankrupt
or insolvent,
(b) adjustment or composition of or in respect of any of the
issuers or the guarantor approving as properly filed a
petition seeking reorganization, arrangement under the
Federal Bankruptcy Code or any other applicable federal or
state law,
(c) appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of any of the
issuers or the guarantor or of any substantial part of our
respective properties, or
(d) ordering the winding up or liquidation of our affairs,
which decree or order remains unstayed and in effect for a period
of 90 consecutive days;
(8) any of the issuers or the guarantor
(a) institute proceedings to be adjudicated a bankrupt or
insolvent,
(b) consent to the institution of bankruptcy or insolvency
proceedings against either of them,
(c) file a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Code or any other
applicable federal or state law,
(d) consent to the filing of the petition described in clause
(c) or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or other similar official
of any of them or of any substantial part of their
respective properties,
(e) make an assignment for the benefit of creditors, or
(f) admit in writing 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 that effect
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other than by reason of the termination of the indenture or the
release of the guarantee in accordance with the indenture.
If an Event of Default 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 that series may declare the principal of all notes of that 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
that series withdraw a declaration of acceleration.
The trustee will not be liable for any action taken 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 the indenture. In the case of an
Event of Default other than the type described in clauses (7) and (8), holders
of at least 25% in aggregate principal amount of the then outstanding notes of
that series must request the trustee to act. In the case of an Event of Default
of the type described in clauses (7) and (8) above, holders of at least 25% in
aggregate principal amount of all of the notes then outstanding must request the
trustee to act and offer the trustee 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
that series.
The trustee may, however, refuse to take any action that it determines
may not lawfully be taken or would be illegal or conflict with the terms of the
indenture or involve it in personal liability or which would be unjustly
prejudicial to holders not joining in the action.
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 that series
notice of default, if the 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
any note, or in the payment of any installment in respect of any fund required
to be set aside for the payment of any note, the trustee shall be protected in
withholding that notice if it determines in good faith that the withholding of
the 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 modify or 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 the modification or amendment. However, no
modification or amendment may, without the consent of the holder of each
outstanding note affected thereby:
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(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 of the note 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
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;
(4) adversely affect any right to exchange any note provided in 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 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 that 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.
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
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(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 choose in some instances not to comply with a term, provision or
condition contained in notes of one series, if the holders of at least a
majority in principal amount of the notes of each series affected by our
noncompliance, waive our compliance with that term, provision or condition. The
waiver shall only extend to or affect that term, provision or condition to the
extent it is expressly waived. Until the waiver becomes effective, our
obligations and the duties of the trustee to those holders with respect to that
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 those holders, waive any past default under the indenture with
respect to those 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 by that
modification or amendment..
MERGER, CONVEYANCE, TRANSFER OR LEASE
We may not enter into any merger or other business combination, 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 any of the issuers may be merged or combined
with or into
(a) any of the issuers, if the issuer involved in the
transaction is the continuing or surviving corporation, or
(b) any one or more wholly-owned subsidiaries of any issuer, if
the wholly-owned subsidiary or subsidiaries involved in the
transaction 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 any of the
issuers or any 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 any of the issuers may be merged
or combined with or into another entity.
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Any of the transactions discussed above may occur only if no Default or Event of
Default shall have occurred and be continuing or would occur as a result of the
transaction. If the issuer involved in the transaction is not the continuing or
surviving corporation, the continuing or surviving corporation shall succeed to
the indenture.
The guarantor may not 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 the merger, if other than the
guarantor, or to which the properties and assets are transferred
assumes all of the obligations of the guarantor under the
indenture and the guarantee, in a supplemental indenture in form
and substance satisfactory to the trustee;
(2) immediately after giving effect to the 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
the transaction complies with the requirements of the indenture.
PAYMENT OF ADDITIONAL AMOUNTS
Any amounts paid by the issuers, or their assignee or successor, will
be paid without deduction for taxes collected for the account of the United
Kingdom or the foreign jurisdiction of incorporation or residence of any
assignee of the issuers or any successor to either issuer or the guarantor. We
refer to these foreign jurisdictions of incorporation or residents in this
prospectus as an "Other Jurisdiction." If, at any time, the United Kingdom or an
Other Jurisdiction requires those deductions, the issuers, their assignee or any
relevant successor will pay additional amounts in respect of principal, premium
or interest as may be necessary so that the net amounts paid to the holders of
the notes or the trustee under the indenture, after the deduction, shall equal
the respective amounts of principal, premium or interest to which those holders
or the trustee are entitled. We refer to these additional amounts in this
prospectus as "Additional Amounts." The preceding discussion 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 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 the payment became due or was provided for, whichever is
later,
(3) any taxes or 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
holder's failure to comply with any reporting requirements
concerning the nationality, residence, identity or connection with
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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 imposed if the beneficial owner
of the relevant note had been the holder of that note, or
(B) which, if the beneficial owner of that note had held the
note as the holder of that note, would have been excluded
under clauses (1) through (4) above, or
(6) any estate, inheritance, gift, sale, transfer, personal property
or similar tax.
We are not required to pay Additional Amounts with respect to the notes
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, may be
discharged from any and all obligations in respect of that series of notes
except for our obligations to replace stolen, lost or mutilated notes, maintain
paying agencies, and hold money for payment in the defeasance trust. This is
referred to as "legal defeasance." We may also terminate our obligations with
respect to certain covenants in the indenture and any other specified covenants
with respect to that series of notes. This is referred to as "covenant
defeasance."
In order to exercise either of these defeasance options, we must
deposit with the trustee, in trust, money or government obligations, an adequate
amount for the payment of principal, including any mandatory installment
payments in respect of any fund to be set aside for the payment of principal,
and interest on, the outstanding notes of the relevant series on the dates those
payments are due.
We must also 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 that series
to recognize income, gain or loss for federal income tax purposes;
(2) in the case of a legal defeasance only, the opinion of counsel
must be based on either a ruling received from or published by the
United States Internal Revenue Service or other change in
applicable federal income tax law to that effect; and
(3) an officer's certificate stating that no Event of Default with
respect to that series of notes has occurred and is continuing.
BOOK-ENTRY; DELIVERY AND FORM
GENERAL. Except as described below, the notes will not be represented
by physical certificates. Instead, the notes will be in the form of one or more
fully registered global notes. Each global note will be deposited with the
trustee, as custodian for, and registered in the name of DTC or a 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
electronic transfer through DTC's Automated Tender Offer Program.
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Notes that are issued as described below under "--Physical Notes" will
be issued as physical certificates. Upon the transfer of a note of any series
issued as physical certificates, that note will be exchanged for an interest in
the global note representing the principal amount of notes being transferred,
unless the global notes for that series have previously been exchanged for
physical certificates.
THE GLOBAL NOTES. We expect that in accordance with DTC's procedures:
(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 that 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 the nominee 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 that interest except in accordance with DTC's procedures and the
requirements of 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 those
beneficial ownership interests.
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
those 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 those customers.
Those payments will be the responsibility of those participants.
Transfers between participants in DTC will be effected in accordance
with DTC's procedures 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 the notes, the holder must transfer its interest in the global notes in
accordance with DTC's normal procedures and the procedures described in the
indenture.
DTC has advised the issuers and the guarantor that it 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 that
participant has given 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.
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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 under 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 entries in its participants' accounts. This system eliminated 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 ("indirect participants").
Although DTC and its participants are expected to follow these
procedures in order to facilitate transfers of interests in the global notes
among participants, they are under no obligation to perform these procedures,
and the 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. Notes issued as physical certificates are referred to
in this prospectus as "physical notes." These physical notes will be
exchangeable or transferable for global notes if:
(1) DTC notifies us that it is unwilling or unable to continue as
depositary for the 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% in
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 an
electronic system through DTC or the successor depositary with
respect to the global notes is no longer required.
Upon the occurrence of any of the above events, we will cause the appropriate
physical notes to be delivered.
THE TRUSTEE
Unless an Event of Default has occurred and is continuing, the trustee
will only perform those duties specifically described in the indenture. If an
Event of Default has occurred and is continuing, the trustee will exercise the
rights and powers given to 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 that person's own affairs.
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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 those claims, as security or otherwise. The trustee is permitted to
engage in other transactions; however, if it acquires any conflicting interest
it must eliminate the conflict or resign.
PAYMENT
All payments of principal, any premium, and interest on the notes 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, the
obligations or their creation. Each holder of notes by accepting a note waives
and releases those persons from that liability. The waiver and release are part
of the consideration for issuance of the notes and the guarantee. This waiver
may not be effective to waive liabilities under the federal securities laws and
it is the view of the SEC that this 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
The following are certain defined terms used in the indenture.
Reference is made to the indenture for a full disclosure of all defined terms,
as well as any other terms used in this prospectus for which no definition is
provided.
"ATTRIBUTABLE DEBT" means, as to any particular lease under which any
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 that 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 that
rent to that date at the yearly rate equivalent to the interest rate inherent in
the lease. The net amount of rent required to be paid under any lease for any
period shall be:
o the aggregate amount of the rent payable by the lessee with
respect to that period EXCLUDING
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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, the 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 the lease may be so
terminated or the date of the determination of the net amount of
rent, as the case may be, and
(2) the amount of the penalty in which event no rent shall be
considered as required to be paid under the 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 those assets
(1) all current liabilities excluding any current liabilities which
are by their terms extendible or renewable at the option of the
obligor on those liabilities to a time more than 12 months after
the time as of which the amount of those 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 that Person and each of its subsidiaries if and to the extent
the accounts of that Person and each of its subsidiaries would normally be
consolidated with those of that 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 named in that agreement,
as lenders, Bank of America National Trust and Savings Association, as Agent,
and BA Securities, Inc., as Arranger, as that agreement may be amended from time
to time or any one or more renewals, extension, refinancings, or refundings of
that 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 the debt.
"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 under 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 that date but is renewable or
extendible at the option of any obligor to a date more than one
year from that date.
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"GAAP" means generally accepted accounting principles described 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 other statements by any 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, in
accordance with Article 12 of the indenture, which is subject to release under
certain circumstances as described in this prospectus.
"LIEN" means any pledge, mortgage, lien, charge, encumbrance or
security interest.
"MATURITY", when used with respect to any note, means the date on which
the principal of that note or an installment of principal becomes due and
payable as provided in that 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 that provides for an
amount less than the principal amount of the note to be due and payable upon a
declaration of acceleration of the Maturity of the note under 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 that 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 that manufacturing plant or warehouse or any portion
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of that plant or warehouse together with the land upon which it is erected and
fixtures comprising a part of that 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 any of the issuers:
(1) that serves as a cash management company for any 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 those
funds, and
(3) whose assets do not materially exceed its liabilities.
"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 under the provisions of Section 308 of the indenture.
"TRUSTEE" means The First National Bank of Chicago until a successor
trustee shall have become trustee in accordance with 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 any 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 under the
Exchange Act or any successor provision or
(3) in the case of USI Atlantic, USI American Holdings and USI Global
Corp., 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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MATERIAL 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 discussed 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 of those changes could be
retroactive and 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 will have the
same adjusted basis and holding period in the registered notes as it had in the
old notes immediately before the exchange.
The preceding paragraph summarizes 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 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 tax treaty or convention. This exemption
should be available under the tax treaty between the United States and the
United Kingdom to beneficial owners of registered notes who timely satisfy the
conditions for that exemption 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 discussed above under
"Description of the Registered 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 the Additional Amounts in respect of the relevant
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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 the
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 in accordance with 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 considered to represent to the issuers and the dealer from whom the
purchase confirmation is received that:
(1) the purchaser is entitled under applicable provincial securities
laws to purchase the notes without the benefit of a prospectus
qualified under those securities laws,
(2) where required by law, the purchaser is purchasing as principal
and not as agent and
(3) the 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 those persons. All or a substantial portion of the assets of
the issuer and those persons may be located outside of Canada and, as a result,
it may not be possible to satisfy a judgment against the issuer or those persons
in Canada or to enforce a judgment obtained in Canadian courts against the
issuer or persons outside of Canada.
NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of notes to whom the Securities Act (British Columbia)
applies is advised that the purchaser is required to file with the British
Columbia Securities Commission a report within ten days of the sale of any notes
acquired by the purchaser in the exchange offer. This 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 report must be filed in
respect of notes acquired on the same date and under the same prospectus
exemption.
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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.
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LEGAL MATTERS
The validity of the registered notes and the registered guarantees have
been passed upon for U.S. Industries, USI Global Corp., 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
included in its Annual Report on Form 10-K/A for the year ended October 3, 1998,
have been audited by Ernst & Young LLP, independent auditors, as stated in their
report included in the Annual Report and which is 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. Our
consolidated financial statements and schedule are incorporated by reference in
reliance on Ernst & Young LLP's report given on the authority of Ernst & Young
LLP and PricewaterhouseCoopers LLP as experts in accounting and auditing.
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U.S. INDUSTRIES, INC.
USI GLOBAL CORP.
USI AMERICAN HOLDINGS, INC.
USI ATLANTIC CORP.
$250,000,000
7-1/8% Senior Notes due 2003
PROSPECTUS
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON 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.
