AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 5, 1999
REGISTRATION NO. 333-70537
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
(Exact Name of Co-Registrant Issuers as Specified in their Charters)
USI ATLANTIC CORP.
(Exact Name of Co-Registrant Guarantor as Specified in its Charter)
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DELAWARE 3998 22-3568449
DELAWARE 3998 22-3363062
DELAWARE 3998 22-3369326
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Classification Code Number) Identification No.)
Organization
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101 Wood Avenue South
Iselin, New Jersey 08830
(732) 767-0700
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Co-Registrants' Principal Executive Offices)
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George H. MacLean, Esq.
Senior Vice President, General
Counsel & Secretary
101 Wood Avenue South
Iselin, New Jersey 08830
(732) 767-0700
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
COPY TO:
Ellen J. Odoner, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
If the securities being registered on this form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
NYFS11...:\95\78595\0012\2011\REG2249P.59B
SUBJECT TO COMPLETION, DATED MARCH 5, 1999
Exchange Offer for
$250,000,000 7-1/8% Senior Notes due 2003
of
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
Issuers
USI ATLANTIC CORP.
Guarantor
TERMS OF THE EXCHANGE OFFER
o We are offering to exchange registered 7-1/8% Senior Notes due 2003 for
all old unregistered 7-1/8% Senior Notes due 2003.
o The terms of the registered notes will be identical to the terms of the
old notes, except for the elimination of transfer restrictions,
registration rights and liquidated damages provisions.
o Our offer to exchange expires at 5:00 p.m., New York City time, on
_______________, 1999, unless extended.
o Our offer to exchange is not subject to any condition other than that it
not violate applicable law or any applicable interpretation of the staff
of the Securities and Exchange Commission.
o All old notes that are validly tendered and not validly withdrawn will be
exchanged.
o Tenders of old notes may be withdrawn at any time prior to the expiration
of the exchange offer.
o As of December 31, 1998, we had approximately $___ million of senior debt
outstanding, including the old notes and other debt which ranks equal in
right of payment with the old notes and the registered notes.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, NOR HAVE ANY
OF THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS MAY NOT BE COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS
IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER
TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
The date of this prospectus is _________, 1999.
TABLE OF CONTENTS
PAGE
Prospectus Summary...................................................... 3
Summary of the Terms of the Exchange Offer........................... 3
Summary of the Terms of the Registered Notes......................... 5
Who We Are........................................................... 7
Where You Can Find More Information..................................... 8
Incorporation of Certain Documents by
Reference............................................................ 8
Disclosure Regarding Forward-Looking
Statements........................................................... 9
Use of Proceeds......................................................... 9
Selected Financial Data................................................. 10
Capitalization.......................................................... 11
Ratio of Earnings to Fixed Charges...................................... 11
The Exchange Offer...................................................... 12
Procedures for Tendering Old Notes...................................... 17
Description of the Registered Notes..................................... 23
Certain Federal Income Tax Considerations............................... 45
Notice to Canadian Residents............................................ 47
Legal Matters........................................................... 49
Experts................................................................. 49
2
PROSPECTUS SUMMARY
This brief summary highlights selected information from the prospectus. It
does not contain all of the information that is important to you. We urge you to
carefully read and review the entire prospectus and the other documents to which
it refers to fully understand the terms of the registered notes and the exchange
offer.
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
Registration Rights.............. On October 27, 1998, we completed the
private placement offering of $250 million
of our 7-1/8% Senior Notes due 2003. We
entered into a registration rights agreement
in connection with the private offering in
which we agreed, among other things, to
deliver this prospectus to you and to
complete the exchange offer prior to May 25,
1999. You are entitled to exchange your old
notes in the exchange offer for registered
notes with substantially identical terms.
The Exchange Offer.............. We are offering to exchange up to $250
million of the registered notes for up to
$250 million of the old notes. Old notes may
be exchanged only in $1,000 increments. IF
YOU DO NOT PARTICIPATE IN THE EXCHANGE
OFFER, UPON COMPLETION OF THE EXCHANGE
OFFER, THERE MAY BE NO MARKET FOR THE OLD
NOTES AND YOU MAY HAVE DIFFICULTY SELLING
THEM.
Resales of the Registered Notes.. We believe that registered notes issued in
the exchange offer may be offered for
resale, resold or otherwise transferred by
you, without compliance with the
registration and prospectus delivery
requirements of the Securities Act if:
(1) the registered notes are acquired in the
ordinary course of your business;
(2) you are not engaging in and do not
intend to engage in a distribution of the
registered notes;
(3) you do not have an arrangement or
understanding with any person to participate
in the distribution of the registered notes;
and
(4) you are not related to us in a capacity
such as a director, officer or significant
stockholder.
If you do not meet all of the above
conditions and you transfer any registered
note issued to you without delivering a
prospectus meeting the requirements of the
3
Securities Act or without an exemption from
registration of your notes from such
requirements, you may incur liability under
the Securities Act. We do not assume, or
indemnify you against, such liability. We
will ask you to represent to us that you
meet all of the above conditions when you
elect to participate in the exchange offer
by signing a letter of transmittal. Each
broker-dealer that receives registered notes
for its own account in exchange for old
notes which were acquired by such
broker-dealer as a result of market-making
activities or other trading activities, must
acknowledge that it will deliver a
prospectus meeting the requirements of the
Securities Act in connection with any
resales of such registered notes. A
broker-dealer may use this prospectus for an
offer to resell or otherwise transfer the
registered notes.
Expiration Date................. Unless we extend the exchange offer, it will
expire at 5:00 p.m., New York City time, on
_________ __, 1999. We will not extend this
time period to a date later than May 25,
1999.
Withdrawal...................... You may withdraw the tender of your old
notes at any time prior to 5:00 p.m., New
York City time, on ____________ __, 1999, or
such later date and time to which we extend
the exchange offer. We will return to you
any old notes not accepted for exchange for
any reason without expense to you as soon as
practicable after the expiration or
termination of the exchange offer.
Interest On The Registered
Notes And The Old Notes......... The registered notes and the old notes
(collectively, the "notes") will pay
interest at the rate of 7-1/8% per annum,
payable semi-annually on each April 15 and
October 15, commencing April 15, 1999.
Interest on the registered notes will accrue
from the date of the original issuance of
the old notes or from the date of the last
periodic payment of interest on the old
notes, whichever is later. No additional
interest will be paid on old notes tendered
and accepted for exchange.
Conditions To The Exchange Offer.. The exchange offer is subject to the
following conditions, each of which may be
waived by us:
(1) any injunction, order or decree shall
have been issued by any court or any
governmental agency that would prohibit,
prevent or otherwise materially impair our
ability to proceed with the exchange offer;
or
4
(2) the exchange offer shall violate any
applicable law or any applicable
interpretation of the Staff of the
Securities and Exchange Commission. If we
waive a condition, we may be required, in
certain instances, to extend the expiration
date of the exchange offer.
Procedures For Tendering Old
Notes............................ If you wish to tender your old notes in the
exchange offer you must transmit to The
First National Bank of Chicago, as the
exchange agent, by 5:00 p.m., New York City
time, on the expiration date:
- a properly completed and duly executed
letter of transmittal, including all other
documents required by the letter of
transmittal, and one or more outstanding
certificated old notes, or
- the documents necessary for compliance
with the guaranteed delivery procedures set
forth below.
If you hold your old notes through The
Depositary Trust Company and you wish to
participate in the exchange offer, you may
do so through The Depositary Trust Company's
Automated Tender Offer Program. By
participating in the exchange offer, you
will agree to be bound by the letter of
transmittal as through you had executed such
letter of transmittal.
Exchange Agent................... The First National Bank of Chicago is
serving as exchange agent for the exchange
offer.
Federal Income Tax
Considerations................... The exchange of old notes for registered
notes in the exchange offer will not
constitute a sale or an exchange for federal
income tax purposes. See "Certain Federal
Income Tax Considerations."
SUMMARY OF THE TERMS OF THE REGISTERED NOTES
Issuers.......................... U.S. Industries, Inc.
USI American Holdings, Inc.
Guarantor........................ USI Atlantic Corp.
Securities Offered............... $250 million aggregate principal amount of
7-1/8% Senior Notes due 2003 which have been
registered under the Securities Act.
Maturity Date.................... October 15, 2003.
Interest......................... The registered notes will bear interest at a
rate of 7- 1/8% per annum, payable
semi-annually on each April 15 and October
15, commencing April 15, 1999.
5
Optional Redemption.............. The registered notes are redeemable, in
whole or in part, at our option on 30 days'
prior notice at the redemption prices stated
in "Description of the Registered
Notes-Optional Redemption" plus accrued and
unpaid interest to the date of redemption.
Guarantees....................... The registered notes are fully and
unconditionally guaranteed on a senior
unsecured basis by the guarantor. See
"Description of the Registered
Notes-Guarantee."
Ranking.......................... The registered notes and the guarantee are
general unsecured obligations of the issuers
and the guarantor, respectively. The notes
and the guarantee will rank equal in right
of payment with all other existing and
future unsecured indebtedness of the issuers
and the guarantor, respectively, unless the
holders of such indebtedness agree to give
priority to the notes.
Events of Default................ The indenture describes those circumstances
which are considered events of default with
respect to any series of notes offered under
the terms of the indenture. See
"Description of the Registered Notes-Events
of Default."
Restrictive Covenants............ The indenture contains certain limitations
on our ability and the ability of our
subsidiaries to, among other things, incur
additional indebtedness, create liens, enter
into certain sale and leaseback transactions
and consolidate, merge with or sell all or
substantially all of our assets to another
person. See "Description of the Registered
Notes-Certain Covenants" and "Description of
the Registered Notes-Consolidation, Merger,
Conveyance, Transfer or Lease."
Use of Proceeds.................. We will not receive any cash proceeds from
the exchange offer.
6
WHO WE ARE
We manufacture and distribute a broad range of consumer and industrial
products through four operating divisions summarized below. Our businesses have
operations and markets both inside and outside the United States. Please refer
to our Form 10-K and other filings for further information.
o USI BATH AND PLUMBING PRODUCTS manufactures and distributes a full line of
bath and plumbing products under the brand names Jacuzzi, Eljer and Zurn.
o LIGHTING CORPORATION OF AMERICA manufactures and distributes indoor and
outdoor lighting fixtures. Its brand names include Architectural Area
Lighting, Columbia, Kim, Progress, Siemens (under license from Siemens AG)
and SiTeco.
o USI HARDWARE AND TOOLS manufactures and distributes lawn and garden tools,
hand tools, ladders, windows and metal television picture tube components.
Its brand names include Ames, Garant, Spear and Jackson and Woodings-Verona
tools; Keller ladders; and BiltBest windows.
o USI DIVERSIFIED manufactures a wide range of consumer and industrial
products. These include Rainbow vacuum cleaners; Ertl die-cast toys and
replicas; Georgia Boot and Durango footwear; leather, metal and plastic
automotive components; overhauled aircraft engine bearings; and leadframes
for the electronics industry.
Our principal executive offices are located at 101 Wood Avenue South, Iselin,
New Jersey 08830, telephone number (732) 767-0700.
7
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational and reporting requirements of the
Securities Exchange Act of 1934, and accordingly, file annual, quarterly and
special reports, proxy statements and other information with the SEC. You may
read and copy any reports, statements and other information that we file with
the SEC at the SEC's public reference facilities at Room 1024, 450 Fifth Street,
N.W., Washington D.C. 20549. Please call 1-800-SEC-0330 for further information
on the public reference facilities. You may also obtain information about us
from the following regional offices of the SEC: Seven World Trade Center, 13th
Floor, New York, New York 10048 and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60601-2511. Copies of these materials can be
obtained at prescribed rates. Our filings with the SEC are also available on the
SEC's home page on the Internet at http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange, Inc. and related
materials may be inspected at the offices of the NYSE at 20 Broad Street, New
York, New York 10005.
We have filed a registration statement on Form S-4 to register with the SEC
notes to be issued in the exchange offer. This prospectus is part of that
registration statement. As allowed by the SEC's rules, this prospectus does not
contain all of the information you can find in the registration statement or the
exhibits to the registration statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
the SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced this way is considered part of
this prospectus, and any information filed with the SEC subsequent to this
prospectus will automatically be deemed to update and supersede this
information. Any information so updated or superseded shall not be a part of
this prospectus except as so updated or superseded. We incorporate by reference
the following documents which have been filed with the SEC:
1. Our Current Report on Form 8-K filed on October 16, 1998;
2. Our Annual Report on Form 10-K for the year ended October 3, 1998 filed
December 14, 1998;
3. Our Amendment to Annual Report on Form 10-K/A for the year ended
October 3, 1998 filed February 3, 1999;
4. Our Proxy Statement, dated January 4, 1999; and
5. Our Quarterly Report on Form 10-Q for the fiscal quarter ended January
2, 1999.
We incorporate by reference all documents filed pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
and prior to the termination of the exchange offer.
We will promptly provide without charge to each person to whom this
prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated by reference in this prospectus, other than exhibits
to such documents, unless such exhibits are specifically incorporated by
reference in such documents. Requests for such copies and information should be
directed to George H. MacLean, Esq., Senior Vice President, General Counsel and
Secretary, U.S. Industries, Inc., 101 Wood Avenue South, P.O. Box 169, Iselin,
New Jersey 08830-0169, telephone (732) 767-0700.
8
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference in this
prospectus, contains forward-looking statements about our financial condition,
results of operations and business. All statements other than statements of
historical fact are, or may be deemed to be, forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Exchange Act. Various economic and competitive factors could cause actual
results to differ materially from the expectations reflected in such
forward-looking statements, including factors which are outside our control,
such as interest rates, foreign currency exchange rates, instability in domestic
and foreign financial markets, consumer spending patterns, availability of
consumer and commercial credit, levels of residential and commercial
construction, levels of automotive production and changes in raw material costs
and Year 2000 issues, along with the other factors noted in this prospectus, and
in the other documents incorporated by reference in this prospectus. In
addition, our future results are subject to uncertainties relating to our
ability to consummate our business strategy, including realizing marketing
synergies and cost savings from the integration of our acquired businesses. All
subsequent written and oral forward-looking statements attributable to us are
expressly qualified in their entirety by the foregoing factors.
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the
registration rights agreement. We will not receive any cash proceeds from the
issuance of the registered notes. The old notes surrendered in exchange for the
registered notes will be retired and cancelled and cannot be reissued. As a
result, the issuance of the registered notes will not result in any increase or
decrease in the indebtedness of the issuers.
The net proceeds of the private offering of the old notes, after deducting
the estimated underwriting discounts and expenses, were $247 million. We applied
$200 million of the net proceeds to repay all amounts outstanding under a
short-term note. The remainder was used to repay borrowings under uncommitted
bank credit lines, and for general corporate purposes.
9
SELECTED FINANCIAL DATA
The following tables sets forth the consolidated (combined) historical
selected financial data of the Company.
FOR THE THREE MONTHS
ENDED
DECEMBER 31, FOR THE FISCAL YEARS ENDED SEPTEMBER 30,
-------------------- --------------------------------------------------------
1998 1997 1998 (1) 1997 1996 1995 (5) 1994
--------- --------- ----------- --------- --------- ----------- ---------
(IN MILLIONS, EXCEPT PER SHARE)
INCOME STATEMENT DATA:
Net sales........................................ $ 796 $ 744 $ 3,310 $ 2,716 $ 2,364 $ 2,181 $ 2,080
Operating income................................. 55 70 149 287 239 105 196
Income (loss) from continuing operations......... 23 32 7 136 104 (42) 53
Net income (loss)................................ 23 31 (44) 252 138 (72) 87
Income from continuing operations per share (2)
Basic.......................................... 0.24 0.34 .07 1.48 1.09 -- --
Diluted........................................ 0.23 0.33 .07 1.43 1.07 -- --
Net income (loss) per share (2)
Basic.......................................... 0.24 0.33 (.46) 2.73 1.45 -- --
Diluted........................................ 0.23 0.32 (.45) 2.64 1.42 -- --
Cash dividend declared per share (4)............. 0.05 0.05 .20 .05 -- -- --
BALANCE SHEET DATA (AT PERIOD END):
Cash and cash equivalents........................ 51 61 $ 44 $ 67 $ 57 $ 67 $ 34
Working capital.................................. 828 727 807 651 697 721 1,159
Total assets..................................... 2,737 2,744 2,812 2,538 2,502 2,232 2,608
Total debt (3)................................... 955 838 966 746 930 1,000 997
Stockholders' equity/Invested capital............ 977 1,054 960 950 758 643 1,022
- ------------------------------
(1) The fiscal year ended September 30, 1998 included non-recurring and unusual
after-tax charges of $140 million of merger, restructuring and other costs,
$7 million to write-off interest rate protection agreements, $34 million to
discontinue a business, and $5 million associated with the refinancing of
Zurn's outstanding indebtedness, totaling $186 million.
(2) All earnings per share data has been prepared in accordance with SFAS 128,
which was adopted on December 31, 1997. The adoption of SFAS 128 did not
have a material impact on the information previously presented. Prior to
fiscal 1996, earnings per share information is not presented as such
information is not indicative of the Company's continuing capital structure.
(3) Amount in fiscal 1994 primarily represents intercompany notes payable to
Hanson plc.
(4) Cash dividends exclude dividends declared and paid by Zurn prior to the
merger.
(5) USI changed its accounting policy for evaluating goodwill impairment in
fiscal 1995, resulting in a charge of $98 million, which affects
comparability between fiscal 1995 and fiscal 1994. Fiscal 1995 operating
income includes charges of $2 million to close certain underutilized
facilities of the lighting products operations.
10
CAPITALIZATION
The following table, which is unaudited, sets forth the capitalization of
our company at December 31, 1998. It reflects the offering of old notes and the
use of proceeds from that offering, reduced by transaction costs, fees and costs
paid in October 1998 to settle outstanding interest rate protection agreements
net of tax benefits. See "Use of Proceeds." This table should be read in
conjunction with the financial information included in the Form 10-K and the
Form 10-Q, as amended. See "Incorporation of Certain Documents by Reference."
Cash and cash equivalents.................... $ 51
=====
Short-term debt.............................. $ 17
Long-term Debt:..............................
Credit Facility:........................... 503
7 1/4% Notes Due 2006...................... 123
7 1/8% Notes Due 2003...................... 247
Other...................................... 65
-----
Total debt.............................. 955
-----
Stockholders' equity......................... 977
-----
Total capitalization....................$1,932
======
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
our company for fiscal 1998, 1997, 1996, 1995 and 1994 and the three months
ended December 31, 1998 and 1997.
For purposes of computing the ratio of earnings to fixed charges, "fixed
charges" are defined as interest expense plus a portion of rental expense
representing the interest factor, and "earnings" are defined as income from
continuing operations before income taxes and fixed charges. The ratio of
earnings to fixed charges for fiscal 1998 was affected by non-recurring and
unusual pre-tax charges of $154 million. Before taking into account such
charges, the ratio of earnings to fixed charges for fiscal 1998 would have been
4.0x. The ratio of earnings to fixed charges for fiscal 1995 was affected by
goodwill impairment and other non-recurring and unusual pre-tax charges of $100
million. Before taking into account such charges, the ratio of earnings to fixed
charges for fiscal 1995 would have been 2.0x.
THREE MONTHS ENDED
FISCAL YEAR ENDED SEPTEMBER 30, DECEMBER 31,
- ------------------------------------------------------------------------- ----------------------
1998 1997 1996 1995 1994 1998 1997
- -------------- -------------- ------------- ----------- ------------ ---------- ----------
2.1 4.5x 3.6x 1.1x 1.9x 2.8x 4.0x
11
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
We issued the old notes on October 27, 1998 (the "Initial Issue Date").
The initial purchasers have advised us that they subsequently resold the old
notes to "qualified institutional buyers" in reliance on Rule 144A under the
Securities Act. As a condition to the private offering, we entered into the
registration rights agreement, which requires that we file a registration
statement under the Securities Act with respect to the registered notes to be
issued in the exchange offer and, upon the effectiveness of the registration
statement, offer to you the opportunity to exchange your notes for a like
principal amount of registered notes. These registered notes will be issued
without a restrictive legend and, except as set forth below, may be reoffered
and resold by you without registration under the Securities Act. After we
complete the exchange offer, our obligations with respect to the registration of
the old notes and the registered notes will terminate, except as provided in the
last paragraph of this section. As a result of the filing and the effectiveness
of the registration statement, assuming we complete the exchange offer by May
25, 1999, certain prospective increases in the interest rate on the old notes
provided for in the registration rights agreement will not occur.
Based on no-action letters issued by the staff of the SEC with respect to
similar transactions, we believe that the registered notes to be issued in the
exchange offer are not subject to such transfer restrictions when the notes are
held by a person who is not related to the issuers, such as directors, officers,
or significant stockholders, provided that the holder represents to us that:
(1) the registered notes are acquired in the ordinary course of the
holder's business; and
(2) the holder is not engaged in, has no understanding with any person
to participate in, and does not intend to engage in, any
distribution of the registered notes.
However, we have not sought a no-action letter with respect to the
exchange offer and we can not assure you that the staff of the SEC would make a
similar determination with respect to the exchange offer. Any holder who tenders
his old notes in the exchange offer with any intention of participating in a
distribution of registered notes
(1) cannot rely on such an interpretation by the staff of the SEC,
(2) will not be able to validly tender old notes in the exchange offer,
and
(3) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any secondary
resale transactions.
In addition, each broker-dealer that receives registered notes for its
own account pursuant to the exchange offer must acknowledge that it will deliver
a prospectus in connection with any resale of such registered notes. The letter
of transmittal accompanying this prospectus states that by so acknowledging and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is acting in the capacity of an "underwriter" within the meaning of Section
2(11) of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of registered notes received in exchange for old notes where such
old notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. Pursuant to the registration rights
agreement, we agreed to make this prospectus available to any broker-dealer for
use in connection with any such resale.
12
If you will not receive freely tradeable registered notes in the exchange
offer or are not eligible to participate in the exchange offer, you can elect,
by so indicating on the letter of transmittal and providing certain additional
necessary information, to have your old notes registered in a shelf registration
statement on an appropriate form pursuant to Rule 415 under the Securities Act.
In the event that we are obligated to file a shelf registration statement, we
will be required to keep the shelf registration statement effective for a period
of two years or such shorter period that will terminate when all of the old
notes covered by the shelf registration statement have been sold pursuant to the
registration statement. Other than as set forth in this paragraph, you will not
have the right to require us to register your old notes under the Securities
Act.
TERMS OF THE EXCHANGE OFFER
Upon satisfaction or waiver of all of the conditions of the exchange
offer, we will accept, any and all old notes properly tendered and not withdrawn
prior to the expiration date and will issue the registered notes promptly after
acceptance of the old notes. See "-Conditions to the Exchange Offer" and
"Procedures for Tendering Old Notes." We will issue $1,000 principal amount of
registered notes in exchange for each $1,000 principal amount of outstanding old
notes accepted in the exchange offer. As of the date of this prospectus,
$250,000,000 aggregate principal amount of the old notes are outstanding.
Holders may tender some or all of their old notes pursuant to the exchange
offer. However, old notes may be tendered only in integral multiples of $1,000.
The registered notes are identical to the old notes except for the
elimination of transfer restrictions, registration rights and liquidated damages
provisions. The registered notes will evidence the same debt as the old notes.
The registered notes will be issued under and entitled to the benefits of the
indenture and, together with the old notes, will be deemed one issue of notes.
This prospectus, together with the letter of transmittal, is being sent
to all registered holders and to others believed to have beneficial interests in
the old notes. Holders of old notes do not have any appraisal or dissenters'
rights under the General Corporation Law of the State of Delaware or the
indenture in connection with the exchange offer. We intend to conduct the
exchange offer in accordance with the applicable requirements of the Securities
Act, the Exchange Act and the rules and regulations of the Commission
promulgated under those acts.
For purposes of the exchange offer, we will be deemed to have accepted
validly tendered old notes when, as and if we have given oral or written notice
thereof to the exchange agent. The exchange agent will act as agent for the
tendering holders for the purpose of receiving the registered notes from us and
delivering such registered notes to such holders.
If we do not accept any tendered old notes because of an invalid tender
or the occurrence of any of the conditions specified under "-Conditions to the
Exchange Offer," we will return such unaccepted old notes, without expense, to
the tendering holder thereof as promptly as practicable after the expiration
date.
Holders who tender old notes in the exchange offer will not be required
to pay brokerage commissions or fees or, except as set forth below under
"-Transfer Taxes," transfer taxes with respect to the exchange of old notes
pursuant to the exchange offer. We will pay all charges and expenses, other than
certain applicable taxes, in connection with the exchange offer. See "-Fees and
Expenses."
13
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "expiration date" shall mean 5:00 p.m., New York City time, on ,
1999, unless we, in our sole discretion, extend the exchange offer, in which
case the term "expiration date" shall mean the latest date and time to which the
exchange offer is extended. In order to extend the exchange offer, we will
notify the exchange agent by oral or written notice and each registered holder
by means of press release or other public announcement of any extension, in each
case, prior to 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date.
We reserve the right, in our sole discretion,
(1) to delay accepting any old notes,
(2) to extend the exchange offer,
(3) to terminate the exchange offer if the conditions set forth below
under "-Conditions to the Exchange Offer" shall not have been
satisfied, or
(4) to amend the terms of the exchange offer in any manner.
We will notify the exchange agent of any delay, extension, termination or
amendment by oral or written notice. We will additionally notify each registered
holder of any amendment. We will give to the exchange agent written confirmation
of any oral notice.
We acknowledge and undertake to comply with the provisions of Rule
14e-1(c) under the Exchange Act which requires us to pay the consideration
offered, or return the old notes surrendered for exchange, promptly after the
termination or withdrawal of the exchange offer. We will notify as promptly as
practicable of any extension, termination or amendment.
EXCHANGE DATE
As soon as practicable after the close of the exchange offer, we will
accept for exchange all old notes properly tendered and not validly withdrawn
prior to 5:00 p.m., New York City time, on the expiration date pursuant to the
exchange offer in accordance with the terms of the registration statement and
the letter of transmittal.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer, and subject
to our obligations under the registration rights agreement, we shall not be
required to accept any old notes for exchange, issue registered notes in
exchange for any old notes and may terminate or amend the exchange offer, if:
(1) any injunction, order or decree has been issued by any court or any
governmental agency that would prohibit, prevent or otherwise materially
impair our ability to proceed with the exchange offer, or
(2) the exchange offer violates any applicable law or any applicable
interpretation of the staff of the SEC.
These conditions are for our sole benefit and may be asserted by us
regardless of the circumstances giving rise to any such condition, subject to
applicable law. We also may waive in whole
14
or in part at any time and from time to time any such condition in our sole
discretion. If we waive a condition, we may be required in certain instances, to
extend the expiration date of the exchange offer. Our failure at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right and such right shall be deemed an ongoing right which may be asserted at
any time and from time to time.
In addition, we will not accept for exchange any old notes tendered, and
no registered notes will be issued in exchange for any such old notes, if at
such time any stop order shall be threatened by the SEC or be in effect with
respect to the registration statement or the qualification of the indenture
under the Trust Indenture Act of 1939.
The exchange offer is not conditioned on any minimum aggregate principal
amount of old notes being tendered for exchange.
CONSEQUENCES OF FAILURE TO EXCHANGE
Any old notes not tendered pursuant to the exchange offer will remain
outstanding and continue to accrue interest. The old notes will be subject to
transfer restrictions because they are not registered under the Securities Act.
Accordingly, prior to the date that is two years after the later of the Initial
Issue Date and the last date on which we or any of our affiliates was the owner
of such old notes, such old notes may be resold only
(1) to us,
(2) to a person whom the seller reasonably believes is a "qualified
institutional buyer" purchasing for its own account or for the
account of another "qualified institutional buyer" in compliance
with the resale limitations of Rule 144A,
(3) to an Institutional Accredited Investor that, prior to such
transfer, furnishes to the trustee a written certification
containing certain representations and agreements relating to the
restrictions on transfer of the notes (the form of which letter can
be obtained from the trustee),
(4) pursuant to the limitations on resale provided by Rule 144 under the
Securities Act (if available),
(5) pursuant to the resale provisions of Rule 904 of Regulation S under
the Securities Act,
(6) pursuant to an effective registration statement under the Securities
Act, or
(7) pursuant to any other available exemption from the registration
requirements of the Securities Act,
subject in each of the foregoing cases to compliance with applicable state
securities laws. As a result of these restrictions on resale, the liquidity of
the market for non-tendered old notes will be adversely affected upon completion
of the exchange offer.
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FEES AND EXPENSES
We will not make any payments to brokers, dealers or others soliciting
acceptances of the exchange offer. The principal solicitation is being made by
mail; however, additional solicitations may be made in person or by telephone by
our officers and employees.
Expenses incurred in connection with the exchange offer will be paid by
us and are estimated in the aggregate to be approximately $100,000 which
includes the fees and expenses of the trustee and the exchange agent, accounting
and legal fees and other miscellaneous fees and expenses.
ACCOUNTING TREATMENT
We will not recognize any gain or loss for accounting purposes upon the
consummation of the exchange offer. We will amortize the expenses of the
exchange offer over the term of the registered notes.
16
PROCEDURES FOR TENDERING OLD NOTES
TENDERING OLD NOTES
The tender of old notes pursuant to any of the procedures set forth in
this prospectus and in the letter of transmittal will constitute a binding
agreement between the tendering holder and us in accordance with the terms and
subject to the conditions set forth in this prospectus and in the letter of
transmittal. The tender of old notes will constitute an agreement to deliver
good and marketable title to all tendered old notes prior to the expiration date
free and clear of all liens, charges, claims, encumbrances, interests and
restrictions of any kind.
EXCEPT AS PROVIDED IN "-GUARANTEED DELIVERY PROCEDURES," UNLESS THE OLD
NOTES BEING TENDERED ARE DEPOSITED BY YOU WITH THE EXCHANGE AGENT PRIOR TO THE
EXPIRATION DATE ACCOMPANIED BY A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL, WE MAY, AT OUR OPTION, REJECT SUCH TENDER. ISSUANCE OF REGISTERED
NOTES WILL BE MADE ONLY AGAINST DEPOSIT OF TENDERED OLD NOTES AND DELIVERY OF
ALL OTHER REQUIRED DOCUMENTS. PARTICIPANTS IN THE DEPOSITORY TRUST COMPANY
TENDERING THROUGH ITS AUTOMATED TENDER OFFER PROGRAM WILL BE DEEMED TO HAVE MADE
VALID DELIVERY WHERE THE EXCHANGE AGENT RECEIVES AN AGENT'S MESSAGE PRIOR TO THE
EXPIRATION DATE.
Accordingly, to properly tender old notes, the following procedures must
be followed:
Notes held through a Custodian. Each beneficial owner holding old notes
through a participant in DTC must instruct that participant to cause its old
notes to be tendered in accordance with the procedures set forth in this
prospectus.
Notes held through DTC. The exchange agent will establish accounts at DTC
for purposes of the exchange offer with respect to old notes held through DTC.
Any financial institution that is a participant in DTC may make book-entry
delivery of interests in old notes into the exchange agent's account through
DTC's Automated Tender Offer Program.
Any financial institution that is a participant in DTC's book-entry
system may make book-entry delivery of old notes by:
(1) electronically transmitting its acceptance through DTC's Automated
Tender Offer Program, or
(2) complying with the guaranteed delivery procedures set forth below
and in the notice of guaranteed delivery. See "-Guaranteed Delivery
Procedures-Notes held through DTC."
Although delivery of interests in the old notes may be effected through
book-entry transfer into the exchange agent's account through DTC's Automated
Tender Offer Program, an agent's message in connection with such book-entry
transfer, and any other required documents, must be, in any case, transmitted to
and received by the exchange agent at its address set forth under "-Exchange
Agent." Delivery of documents to DTC does not constitute delivery to the
exchange agent. The confirmation of a book-entry transfer into the exchange
agent's account at DTC as described above is referred to herein as a "book-entry
confirmation."
The term "agent's message" means a message transmitted by DTC to, and
received by, the exchange agent and forming a part of the book-entry
confirmation, which states that DTC has received an express acknowledgement from
each participant tendering through DTC's Automated Tender Offer
17
Program that such participants have received a letter of transmittal and agree
to be bound by the terms of the letter of transmittal and that either of the
issuers may enforce such agreement against such participants.
Notes held by Holders. Each holder must (1) complete and sign the
accompanying letter of transmittal, and mail or deliver such letter of
transmittal, and any other documents required by the letter of transmittal,
together with certificate(s) representing all tendered old notes, to the
exchange agent at its address set forth under "-Exchange Agent," or (2) comply
with the guaranteed delivery procedures set forth below and in the notice of
guaranteed delivery. See "-Guaranteed Delivery Procedures-Notes held by
Holders."
All signatures on a letter of transmittal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program; provided, however, that signatures on a letter of transmittal
need not be guaranteed if old notes are tendered for the account of an "eligible
institution."
If a letter of transmittal or any old note is signed by a corporation or
person acting in a fiduciary or representative capacity, such person must so
indicate when signing, and proper evidence satisfactory to us of the authority
of such person must be submitted.
Holders should indicate in the applicable box in the letter of
transmittal the name and address to which substitute certificates evidencing old
notes for amounts not tendered are to be issued or sent, if different from the
name and address of the person signing the letter of transmittal. In the case of
issuance in a different name, the employer identification or social security
number of the person named must also be indicated. If no instructions are given,
the untendered old notes will be returned to the person signing the letter of
transmittal.
By tendering, each holder and each participant in DTC will represent to
us that, among other things,
(1) it is not an affiliate of either issuer,
(2) it is not a broker-dealer tendering old notes acquired directly from
either issuer for its own account,
(3) the registered notes acquired in the exchange offer are being
obtained in the ordinary course of business of such holder and
(4) such holder has no understandings with any person to participate in
the exchange offer for the purpose of distributing the registered
notes.
We will not accept any alternative, conditional, irregular or contingent
tenders (unless waived by us). By executing a letter of transmittal or
transmitting an acceptance through DTC's Automated Tender Offer Program, as the
case may be, each tendering holder waives any right to receive any notice of the
acceptance for purchase of its old notes.
We will resolve all questions as to the validity, form, eligibility and
acceptance of tendered old notes, and such determination will be final and
binding. We reserve the absolute right to reject any or all tenders that are not
in proper form or the acceptance of which may, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any condition to the
exchange offer and any irregularities or conditions of tender as to particular
old notes. Our interpretation of the terms and conditions of the exchange offer,
including the instructions in the letter of transmittal, will be final and
18
binding. Unless waived, any irregularities in connection with tenders must be
cured within such time as we shall determine. We, along with the exchange agent,
shall be under no duty to give notification of defects in such tenders and shall
not incur liabilities for failure to give such notification. Tenders of old
notes will not be deemed to have been made until such irregularities have been
cured or waived. Any old notes received by the exchange agent that are not
properly tendered and as to which the irregularities have not been cured or
waived will be returned by the exchange agent to the tendering holder, unless
otherwise provided in the letter of transmittal, as soon as practicable
following the expiration date.
LETTERS OF TRANSMITTAL AND OLD NOTES MUST BE SENT ONLY TO THE EXCHANGE
AGENT. DO NOT SEND LETTERS OF TRANSMITTAL OR OLD NOTES TO EITHER OF THE ISSUERS,
THE GUARANTOR OR DTC.
The method of delivery of old notes, letters of transmittal, any required
signature guaranties and all other required documents, including delivery
through DTC and any acceptance through DTC's Automated Tender Offer Program, is
at the election and risk of the persons tendering and delivering acceptances or
Letters of Transmittal and, except as otherwise provided in the applicable
letter of transmittal, delivery will be deemed made only when actually received
by the exchange agent. If delivery is by mail, we suggest that you use properly
insured, registered mail with return receipt requested, and that the mailing be
made sufficiently in advance of the expiration date to permit delivery to the
exchange agent prior to the expiration date.
GUARANTEED DELIVERY PROCEDURES
NOTES HELD THROUGH DTC. Participants in DTC holding old notes through DTC
who wish to cause their old notes to be tendered, but who cannot transmit their
acceptances through DTC's Automated Tender Offer Program prior to the expiration
date, may tender their old notes if:
(1) guaranteed delivery is made by or through:
o a bank;
o a broker, dealer, municipal securities dealer, municipal securities
broker, government securities dealer or government securities
broker;
o a credit union;
o a national securities exchange, registered securities association
or clearing agency; or
o a savings institution that is a participant in a Securities
Transfer Association recognized program;
(2) prior to the expiration date, the exchange agent receives by mail,
hand delivery, facsimile transmission or overnight courier from such
eligible institution a properly completed and duly executed notice of
guaranteed delivery substantially in the form provided with this
prospectus; and
(3) book-entry confirmation and an agent's message in connection therewith
(as described above) are received by the exchange agent within three
NYSE trading days after the date of the execution of the notice of
guaranteed delivery.
NOTES HELD BY HOLDERS. Holders who wish to tender their old notes but
19
(1) whose old notes are not immediately available and will not be
available for tendering prior to the expiration date, or
(2) who cannot deliver their old notes, the letter of transmittal, or any
other required documents to the exchange agent prior to the expiration
date,
may effect a tender if:
o the tender is made by or through an eligible institution;
o prior to the expiration date, the exchange agent receives by mail,
hand delivery, facsimile transmission or overnight courier from such
eligible institution a properly completed and duly executed notice of
guaranteed delivery substantially in the form provided with this
prospectus; and
o a properly completed and executed letter of transmittal, as well as
the certificate(s) representing all tendered old notes in proper form
for transfer, and all other documents required by the letter of
transmittal, are received by the exchange agent within three NYSE
trading days after the date of the execution of the notice of
guaranteed delivery.
WITHDRAWAL RIGHTS
You may withdraw tenders of old notes at any time prior to 5:00 p.m., New
York City time, on the expiration date. Withdrawals may be made of any portion
of such old notes in integral multiples of $1,000 principal amount due at the
stated maturity. Any old notes properly withdrawn will be deemed to be not
validly tendered for purposes of the exchange offer.
NOTES HELD THROUGH DTC. Participants in DTC holding old notes who have
transmitted their acceptances through DTC's Automated Tender Offer Program may,
prior to 5:00 p.m., New York City time, on the expiration date, withdraw its
tender of old notes by delivering to the exchange agent, at its address set
forth under "-Exchange Agent," a written, telegraphic or facsimile notice of
withdrawal of such instruction. Such notice of withdrawal must contain:
o the name and number of the participant,
o the principal amount due at the stated maturity of old notes to
which such withdrawal related, and
o the signature of the participant.
Receipt of such written notice of withdrawal by the exchange agent effectuates a
withdrawal.
NOTES HELD BY HOLDERS. Holders may withdraw their tender of old notes,
prior to 5:00 p.m., New York City time, on the expiration date, by delivering to
the exchange agent, at its address set forth under "-Exchange Agent," a written,
telegraphic or facsimile notice of withdrawal. Any such notice of withdrawal
must:
(1) specify the name of the person who tendered the old notes to be
withdrawn,
20
(2) contain a description of the old notes to be withdrawn and identify
the certificate number or numbers shown on the particular certificates
evidencing such old notes and the aggregate principal amount due at
the stated maturity represented by such old notes and
(3) be signed by the holder of such old notes in the same manner,
including any required signature guaranties, as the original signature
on the letter of transmittal by which such old notes were tendered, or
be accompanied by (x) documents of transfer in a form acceptable to
us, in our sole discretion and (y) a properly completed irrevocable
proxy that authorized such person to effect such revocation on behalf
of such holder.
If the old notes to be withdrawn have been delivered or otherwise identified to
the exchange agent, a signed notice of withdrawal is effective immediately upon
written, telegraphic or facsimile notice of withdrawal even if physical release
is not yet effected.
All signatures on a notice of withdrawal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program; provided, however, that signatures on the notice of
withdrawal need not be guaranteed if the old notes being withdrawn are held for
the account of an eligible institution.
A withdrawal of an instruction or a withdrawal of a tender must be
executed by a participant in DTC or a holder of old notes, as the case may be,
in the same manner as the person's name appears on its transmission through
DTC's Automated Tender Offer Program or the letter of transmittal, as the case
may be, to which such withdrawal relates. If a notice of withdrawal is signed by
a trustee, partner, executor, administrator, guardian, attorney-in-fact, agent,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person must so indicate when signing and must submit with the
revocation appropriate evidence of authority to execute the notice of
withdrawal. A participant in DTC or a holder may withdraw an instruction or a
tender, as the case may be, only if such withdrawal complies with the provisions
of this prospectus.
A withdrawal of a tender of old notes by a participant in DTC or a holder,
as the case may be, may be rescinded only by a new transmission of an acceptance
through DTC's Automated Tender Offer Program or execution and delivery of a new
letter of transmittal, as the case may be, in accordance with the procedures
described in this prospectus.
21
EXCHANGE AGENT
The First National Bank of Chicago has been appointed as exchange agent
for the exchange offer. Questions, requests for assistance and requests for
additional copies of this prospectus or of the letter of transmittal should be
directed to the exchange agent addressed as follows:
By Registered or Certified Mail By Hand
or By Overnight Courier:
The First National Bank of Chicago
as Exchange Agent
153 West 51st Street
New York, NY 10019
Facsimile: By Telephone:
(212) 373-1383 (212) 373-1339
The exchange agent also acts as trustee under the indenture.
TRANSFER TAXES
Holders of old notes who tender their old notes for exchange will not be
obligated to pay any transfer taxes in connection with such tender, except that
holders who instruct us to register registered notes in the name of, or request
that old notes not tendered or not accepted in the exchange offer be returned
to, a person other than the registered tendering holder will be responsible for
the payment of any applicable transfer tax on such transfer.
22
DESCRIPTION OF THE REGISTERED NOTES
The registered notes will be issued, and the old notes were issued, under
an indenture among the issuers, the guarantor and The First National Bank of
Chicago, as trustee. We have filed a copy of the indenture as an exhibit to the
registration statement which includes this prospectus.
The following is a summary of the material provisions of the indenture and
the notes. We urge you to read the indenture and the notes because they, and not
this description, define your rights as holders of these notes. For the meaning
of capitalized terms used without definition, see "-Definitions."
As used in this Section of the prospectus, the terms "we", "us" and "our"
mean U.S. Industries, Inc. and USI American Holdings, Inc. and are used
interchangeably within the term the "issuers."
GENERAL
The notes, which mature on October 15, 2003, are limited to $250 million
in aggregate principal amount. The notes pay interest at the rate of 7-1/8% per
annum, payable on April 15 and October 15 of each year, commencing April 15,
1999. Interest on the notes will accrue from the most recent date on which
interest has been paid or, if no interest has been paid, from the original date
of issuance. Interest will be computed on the basis of a 360-day year comprising
twelve 30-day months. Any old notes that remain outstanding after the completion
of the exchange offer will be treated as a single class of securities under the
indenture with the registered notes issued in connection with the exchange
offer. See "The Exchange Offer."
Principal, premium and interest on the notes will be payable and all of
the notes will be exchangeable and transferable, at our office or agency in the
City of New York or, at our option, interest may be paid by check mailed to the
address of the person entitled thereto as such address appears in the security
register. Our office or agency in the City of New York will initially will be
the office of the trustee located at 153 West 51st Street, New York, NY 10019.
The notes will be issued only in registered form without coupons and only
in denominations of $1,000 and integral multiples of $1,000. Any purchase of
notes will be subject to a minimum initial purchase obligation of $250,000 for
each person acquiring notes. No service charge will be made for any
registration, transfer, exchange or redemption of notes, but we may require
payment in certain circumstances of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration, transfer, exchange or redemption.
We do not presently intend to apply for listing of the notes on any
national securities exchange or for inclusion of the notes in any automated
quotation system.
FURTHER ISSUES
The indenture permits the issuance of additional series of notes. Any
notes subsequently offered under the indenture will rank equally or lesser in
right of payment to the notes. We may from time to time, without the consent of
holders, create and issue additional notes having substantially the same terms
and conditions as any series of notes. Any such additional notes may be combined
with existing notes to form a single series under the indenture.
23
GUARANTEE
Our obligations under the notes will be fully and unconditionally
guaranteed by USI Atlantic. The guarantee will be on a senior unsecured basis.
The obligations of USI Atlantic. under the guarantee will be limited as
necessary to prevent the guarantee from constituting a fraudulent conveyance or
fraudulent transfer under applicable federal bankruptcy law and comparable
provisions of state fraudulent transfer laws. If the guarantee were void by a
court, claims in respect of the guarantee could be ranked behind all other
indebtedness of USI Atlantic, including guarantees and other contingent
liabilities. Any payment by USI Atlantic pursuant to its guarantee could be
voided and required to be returned to USI Atlantic, or to a fund for the benefit
of its creditors.
RELEASE OF USI ATLANTIC AS GUARANTOR AND USI AMERICAN HOLDINGS AS CO-ISSUER
The indenture allows the release of USI Atlantic and USI American Holdings
under certain circumstances. Following such release, only U.S. Industries will
remain obligated under the notes. This provision is intended to permit U.S.
Industries to simplify its borrowing structure in the future.
USI Atlantic will be released from its obligations under the guarantee or
USI American Holdings will be released from its obligations as co-issuer of the
notes, as the case may be, if:
(1) the obligations of the issuers under the indenture are assumed by an
acquiring or successor person other than any of our subsidiaries,
(2) USI Atlantic or USI American Holdings, as the case may be, is disposed of
in a transaction that results in USI Atlantic or USI American Holdings, as
the case may be, no longer being a subsidiary of U.S. Industries, or all
or substantially all the assets of USI Atlantic or USI American Holdings,
as the case may be, are disposed of other than to U.S. Industries or one
of its subsidiaries, or
(3) upon repayment of all amounts outstanding or, in the case of USI Atlantic,
the voluntary release of USI Atlantic under (x) the 7 1/4% Senior Notes
due 2006, (y) the Credit Facility and (z) any Debt of U.S. Industries or
any of its subsidiaries Incurred to extend, renew, refinance or refund any
part of the 7 1/4% Senior Notes due 2006 or the Credit Facility.
Immediately after any such release, we must be in compliance with the
limitation on indebtedness of Restricted Subsidiaries and the other covenants
contained in the indenture. Furthermore, as a condition to any release pursuant
to clause (3), we must certify to the trustee that immediately following any
such release:
(1) in the case of USI Atlantic, USI Atlantic will not be a guarantor of
any Restricted Subsidiary Funded Debt in excess of the amount of the
Debt Basket or
(2) in the case of USI American Holdings, USI American Holdings will not
be an obligor under any Restricted Subsidiary Funded Debt in excess of
the amount of the Debt Basket.
RANKING
The notes and the guarantees are senior unsecured obligations of the
issuers and the guarantor, respectively. The notes and the guarantees will rank
equal in right of payment to all other existing and future unsecured
indebtedness of the issuers and the guarantor, respectively, unless the holders
of such indebtedness agree to give priority to the notes and the guarantees.
24
The guarantee is a senior unsecured obligation of the guarantor and ranks
equally to all other existing and future unsecured and unsubordinated
indebtedness of the guarantor and is senior in right of payment to all
subordinated indebtedness of the guarantor.
The notes and the guarantee are effectively subordinated to all existing
and future (i) secured indebtedness of the issuers and the guarantor, to the
extent of the value of the assets securing such indebtedness and (ii)
indebtedness of any subsidiaries of the issuers and of the guarantor other than
USI American Holdings.
Each of the issuers and the guarantor is a holding company that operates
through subsidiaries. Accordingly, the ability of each of the issuers and the
guarantor to pay their debts, including the notes, is dependent upon the cash
flow and ability to pay dividends of their respective subsidiaries. The issuers'
and the guarantor's rights and the rights of their respective creditors,
including holders of the notes offered by this prospectus, to receive proceeds
from the assets of any subsidiary upon such subsidiary's liquidation or
recapitalization will be subject to the prior claims of such subsidiary's
creditors. At [September 30, 1998], the total indebtedness of the subsidiaries
of U.S. Industries other than USI American Holdings and USI Atlantic was
approximately [$67 million.]
The indenture does not restrict:
(1) the Incurrence of secured or unsecured indebtedness by the issuers
or unrestricted subsidiaries of the issuers,
(2) a change in control of the issuers or the guarantor or
(3) a highly leveraged transaction involving the issuers or the
guarantor.
Restricted subsidiaries of the issuers are, however, limited in the amount of
indebtedness that may be Incurred by them. See "Certain Covenants-Limitation on
Restricted Subsidiary Funded Debt."
OPTIONAL REDEMPTION
We may redeem the notes, in whole or in part, at any time or from time to
time, on at least 30 days' prior notice by mail, at a redemption price equal to
the greater of
(1) 100% of the principal amount of the notes to be redeemed, or
(2) the sum of the present values of the remaining scheduled payments of
principal and interest on the notes discounted to the date of
redemption on a semiannual basis at the Treasury Rate plus 50 basis
points, plus, in each case, accrued but unpaid interest to the
redemption date.
On and after the redemption date, interest will cease to accrue on the notes or
portions of the notes called for redemption on such date.
In the case of any partial redemption, the trustee will select the notes
for redemption on a pro rata basis, by lot or by such other method as the
trustee in its sole discretion shall deem to be fair and appropriate. No note of
$1,000 or less in original principal amount shall be redeemed in part. If any
note is to be redeemed in part only, the notice of redemption relating to such
note shall state the portion of the principal amount of such note to be
redeemed. The holder of the redeemed note will receive a new note in principal
amount equal to the unredeemed portion of such note upon cancellation of the
original note.
25
For this purpose, the following terms shall have the meaning set forth
below:
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Bank which would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the notes. "Independent Investment Bank" means one of the Reference Treasury
Dealers appointed by the trustee after consultation with the issuers.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury
Issue, expressed in each case as a percentage of its principal amount,
on the third business day preceding such redemption date, as set forth
in the daily statistical release published by the Federal Reserve Bank
of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or
(ii)if such release or a successor is not published or does not contain
such prices on such business day
(A) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or
(B) if the trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such
Quotations.
"Reference Treasury Dealer" means Credit Suisse First Boston Corporation
and its successors and/or such other primary U.S. Government securities dealers
in New York City (a "Primary Treasury Dealer") as shall be designated by the
issuers from time to time, in each case, so long as such entity continues to be
a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. EST on the
third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for such Comparable Treasury Issue expressed as
a percentage of its principal amount equal to the Comparable Treasury Price for
such redemption date.
The notice of redemption will set forth the method of calculation of the
redemption price as described in the first paragraph of this section entitled
"Optional Redemption." We will deliver to the trustee, no later than two
business days prior to the redemption date, an officers' certificate stating the
redemption price, calculated as stated in the notice of redemption.
26
REDEMPTION IN CIRCUMSTANCES INVOLVING TAXATION
We may redeem any series of notes, in whole at any time, at a redemption
price equal to 100% of the principal amount of the notes plus accrued and unpaid
interest to the redemption date, if, as the result of:
(1) any change in or any amendment to the laws, including any applicable
double taxation treaty or convention, of the United Kingdom or any
Other Jurisdiction, as defined below under "-Payment of Additional
Amounts", or of any political subdivision or taxing authority of the
United Kingdom, affecting taxation, or
(2) any change in the application or interpretation of such laws, double
taxation treaty or convention,
which change or amendment becomes effective on or after the original issuance
date of the notes or, in certain circumstances, such later date on which any
assignee of the issuers, the guarantor or a successor corporation of either of
them becomes such as permitted under the indenture, it is determined, by us, the
guarantor or such assignee which terms, for purposes of the remainder of this
paragraph, include any successor thereto that
(a) the issuers, the guarantor or their respective assignees would be
required to make additional payments in respect of principal, any
premium, or interest, or
(b) based upon an opinion of independent counsel to the issuers, the
guarantor or their respective assignees, as a result of any action
taken by any taxing authority of, or any action brought in a court of
competent jurisdiction in, the United Kingdom or the Other
Jurisdiction, or any political subdivision or taxing authority of the
United Kingdom whether or not such action was taken or brought with
respect to the issuers, the guarantor or their respective assignees,
which action is taken or brought on or after the original issuance
date of the notes or, in certain circumstances, such later date on
which a corporation becomes a successor or an assignee, the
circumstances described in clause (1) would exist.
NO SINKING FUND OR COLLATERAL
We are not obligated to set aside funds or to establish a separate account
for your benefit to make the required interest and principal payments on the
registered notes.
CERTAIN COVENANTS
The indenture contains, among others, the following covenants:
LIMITATION ON LIENS. We will not, and will not permit any Restricted
Subsidiary to create, incur, assume or allow to exist any Lien (as defined) upon
any of our respective properties, assets or revenues, to secure any Debt without
making effective provision for securing the notes and, if we shall so determine,
any other Debt of either or both of the issuers which is not lesser in right of
payment to the notes:
(1) equally and ratably with or prior to such Debt as to such property or
assets for so long as such debt shall be so secured, or
(2) in the event such Debt is subordinate in right of payment to the
notes, prior to such Debt as to such property or assets for so long as
such Debt shall be so secured.
27
The foregoing restrictions will not apply to Permitted Liens (as defined in the
indenture), which shall include:
(1) Liens securing only the notes or the guarantee;
(2) Liens in favor of only the issuers, the guarantor or a Restricted
Subsidiary;
(3) Liens existing on the date of the indenture;
(4) Liens on property of a Person existing at the time such Person is
merged into or consolidated with either issuer or a Restricted
Subsidiary or becomes a Restricted Subsidiary of either issuer and
not in anticipation of or in connection with such event, provided
that the Debt secured by such Lien is otherwise permitted to be
Incurred under the indenture;
(5) Liens on property existing immediately prior to the time of
acquisition of such property from a non-Affiliate and not Incurred
in anticipation of or in connection with the financing of such
acquisition, provided that the Debt secured by such Lien is
otherwise permitted to be Incurred under the indenture;
(6) Liens to secure Debt Incurred for the purpose of financing all or
any part of the purchase price or the cost of construction or
improvement of the property subject to such Liens and, in the case
of a Restricted Subsidiary all or substantially all of whose assets
consist of such property, any Lien on ownership interests or
investments in such Restricted Subsidiary Incurred in connection
with the acquisition or construction of such property, and the
Incurrence of such Debt is otherwise permitted under the indenture
and such Debt is Incurred prior to, at the time of, or within 180
days after, the acquisition of such property, the completion of such
construction or the making of such improvements;
(7) Liens on property of the issuers or any of their Restricted
Subsidiaries in favor of the United States of America or any state
of the United States, or any instrumentality of either, to secure
certain payments pursuant to any contract or statute;
(8) Liens for taxes or assessments or other governmental charges or
levies which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted or for
which a reserve or other appropriate provision, if any, as shall be
required in accordance with GAAP shall have been made;
(9) Liens to secure obligations under workmen's compensation, temporary
disability, social security, retiree health or similar laws or under
unemployment insurance;
(10) Liens Incurred to secure the performance of statutory obligations,
bids, tenders, leases, contracts other than contracts for the
repayment of Debt, surety or appeal bonds, performance or
return-of-money bonds or other obligations of a like nature Incurred
in the ordinary course of business;
(11) Judgement and attachment Liens not giving rise to a Default or Event
of Default;
(12) Any Lien arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods in the
ordinary course of business in accordance with industry practice;
28
(13) Liens securing documentary letters of credit; provided such Liens
attach only to the property or goods to which such letter of credit
relates;
(14) Liens arising from filing financing statements under the Uniform
Commercial Code for precautionary purposes in connection with true
leases of personal property that are otherwise permitted under the
indenture and under which the issuers or any Restricted Subsidiary
is a lessee; or
(15) Liens to secure Debt Incurred to extend, renew, refinance or refund,
in whole or in part, Debt secured by any Lien referred to in the
foregoing clauses (1) through (14) inclusive, so long as such Lien
does not extend to any additional property other than property
attributable to improvements, alterations and repairs and the
principal amount of the Debt secured pursuant to this clause (15)
shall not exceed the principal amount of Debt so extended, renewed,
refinanced or refunded assuming all available amounts were borrowed
plus the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such
extension, renewal, refinancing or refunding at the time of such
extension, renewal, refinancing or refunding.
In addition to the foregoing, we and our Restricted Subsidiaries may incur
a Lien to secure any Debt, without securing the notes, if, after giving effect
to such Lien, the sum, without duplication, of
(1) the aggregate principal amount of all outstanding Debt secured by
Liens Incurred by us and our Restricted Subsidiaries with the
exception of secured Debt which is excluded pursuant to clauses (1)
through (15) inclusive, described above and
(2) the aggregate amount of all Attributable Debt of all sale and
leaseback transactions involving Principal Properties with the
exception of Attributable Debt excluded pursuant to clauses (1), (2)
and (3) described below under "-Limitation on Sale and Leaseback
Transactions" does not exceed 15% of Consolidated Net Tangible Assets
(the "Lien Basket"); provided, however, that the Lien Basket shall be
reduced, without duplication, by the amount of outstanding Funded Debt
Incurred from time to time pursuant to the Debt Basket (as defined
below).
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We will not, and will not
permit any Restricted Subsidiary to, enter into any sale and leaseback
transaction unless either:
(1) (A) the Attributable Debt of the issuers and their Restricted
Subsidiaries in respect of such sale and leaseback transaction
and all other sale and leaseback transactions entered into
after the date we first issued notes under the indenture other
than such sale and leaseback transactions as are permitted by
paragraph (2) or (3) below,
PLUS
(B) the aggregate principal amount of Funded Debt secured by Liens
on Principal Properties and Restricted Securities then
outstanding excluding any such Funded Debt secured by
Permitted Liens without equally and ratably securing the
notes,
would not exceed 15% of Consolidated Net Tangible Assets (the "Leaseback
Basket"); or
(2) the issuers, within 180 days after the sale or transfer, apply or
cause a Restricted Subsidiary to apply an amount equal to the greater of
29
(A) the net proceeds of such sale or transfer or
(B) fair market value of the Principal Property so sold and leased
back at the time of entering into such sale and leaseback
transaction
in either case, as determined by any two of the following: the Chairman, the
President, any Vice President, the Treasurer or the Controller of each of the
issuers, to the retirement of our Debt which is senior or equal in right of
payment to the notes or Debt of a Restricted Subsidiary, having a stated
maturity more than 12 months from the date of such application or which is
extendible at the option of the obligor on such Debt to a date more than 12
months from the date of such application. Unless otherwise expressly provided
with respect to any one or more series of notes, any redemption of notes under
this provision shall not be deemed to constitute a refunding operation or
anticipated refunding operation for the purposes of any provision limiting our
right to redeem notes of any one or more such series when such redemption
involves a refunding operation or anticipated refunding operation. The amount to
be so applied shall be reduced by:
(A) the principal amount of notes delivered within 120 days after such
sale or transfer to the trustee for retirement and cancellation, and
(B) the principal amount of any such Debt of the issuers or a Restricted
Subsidiary, other than notes, voluntarily retired by us or a
Restricted Subsidiary within 120 days after such sale or transfer.
Notwithstanding the foregoing, no retirement referred to in this paragraph
(2) may be effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision; or
(3) the issuers, within 180 days prior or subsequent to such sale or
transfer, apply or cause a Restricted Subsidiary to apply an amount equal to the
net proceeds of such sale or transfer to an investment in another Principal
Property; provided, however, that this exception shall apply only if such
proceeds invested in such other Principal Property shall not exceed the total
acquisition, alteration, repair and construction cost of the issuers or any
Restricted Subsidiary in such other Principal Property less amounts secured by
any purchase money or construction mortgage on such other Principal Property.
For purposes of this covenant, a "sale and leaseback transaction" shall mean any
arrangement with any bank, insurance company or other third-party lender or
investor providing for the leasing of any Principal Property, which was or is
owned or leased by either of us or a Restricted Subsidiary and which has been or
is to be sold or transferred, more than 180 days after the completion of
construction and commencement of full operation of such Principal Property by us
to such third-party lender or investor or to any Person to whom funds have been
or are to be advanced by such lender or investor on the security of such
Principal Property.
This provision will not prohibit a lease for a temporary period not to
exceed three years, if by the end of such three-year period it is intended that
the use of such Principal Property by the lessee will be discontinued.
LIMITATION ON RESTRICTED SUBSIDIARY FUNDED DEBT. We will not permit any
Restricted Subsidiary of ours or of the guarantor to Incur any Funded Debt.
Notwithstanding the foregoing, any Restricted Subsidiary may Incur the following
Funded Debt:
(1) Funded Debt of any Restricted Subsidiary constituting Existing Funded
Debt;
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(2) Funded Debt Incurred by a Special Purpose Funding Subsidiary, provided
that such Restricted Subsidiary remains at all times a Special Purpose
Funding Subsidiary;
(3) Funded Debt owed by a Restricted Subsidiary to the guarantor, either
issuer or a Wholly-Owned Subsidiary of either of us provided that such
Funded Debt is at all times held by the guarantor, either issuer or a
Person which is a Wholly-Owned Subsidiary of either of us; provided,
however, that upon either
(A) that transfer or other disposition by the guarantor, either
issuer or such Wholly-Owned Subsidiary of any Funded Debt so
permitted to a Person other than the guarantor, either issuer or
another Wholly-Owned Subsidiary of any of us, or
(B) the issuance other than directors' qualifying shares, sale,
lease, transfer or other disposition of shares of Capital Stock
including by consolidation or merger of such Wholly-Owned Subsidiary
to a Person other than the guarantor, either issuer or another such
Wholly-Owned Subsidiary, the provisions of this clause (3) shall no
longer be applicable to such Funded Debt and such Funded Debt shall
be deemed to have been Incurred at the time of such transfer or
other disposition;
(4) Funded Debt Incurred by a Person before such Person became a
Restricted Subsidiary in an acquisition by either of or both of us
from a non-Affiliate whether through a stock acquisition, merger,
consolidation or otherwise after the date of the indenture provided
such Funded Debt was not Incurred in anticipation of or in connection
with and was outstanding prior to such acquisition;
(5) Funded Debt Incurred in connection with the acquisition, purchase,
improvement or development of property or assets used or held by any
Subsidiary of either issuer prior to, or within 180 days after, the
time of such acquisition, purchase, improvement or development;
(6) Funded Debt Incurred to extend, renew, refinance or refund in whole or
in part, of any Funded Debt referred to in the foregoing clauses (1),
(4) and (5), provided that the principal amount of the Funded Debt
Incurred pursuant to this clause (6) shall not exceed the principal
amount of Funded Debt so extended, renewed, refinanced or refunded,
plus the aggregate amount of premiums, other payments, costs and
expenses required to be paid or incurred in connection with such
extension, renewal, refinancing or refunding at the time of such
extension, renewal, refinancing or refunding; and
(7) Funded Debt not otherwise permitted under the foregoing exceptions in
an aggregate principal amount which, when aggregated with all other
Funded Debt not otherwise permitted under the foregoing exceptions of
all of our Restricted Subsidiaries then outstanding does not exceed
15% of Consolidated Net Tangible Assets (the "Debt Basket"); provided,
however, that the Debt Basket shall be reduced, without duplication,
by the amount of Debt secured by the Lien Basket and by the amount of
Attributable Debt Incurred pursuant to the Leaseback Basket, in each
case to the extent such secured Debt and such Attributable Debt may
from time to time be outstanding.
APPLICABILITY OF COVENANTS. The covenants described in this prospectus
apply to the notes. The indenture provides, however, that the covenants
applicable to future issuances of securities under the indenture may have
covenants similar or different from those set forth in this prospectus.
31
EVENTS OF DEFAULT
The indenture provides that the following are Events of Default with
respect to any series of notes offered under the indenture:
(1) default in the payment of any interest on the notes of such series, or
any related coupon, when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of or premium, if any, on the
notes of such series at their maturity and continuance of such default for a
period of five business days;
(3) default in the performance, or breach, of any covenant or agreement of
the issuers or the guarantor in the indenture which affects or is applicable to
the notes of such series other than a default in the performance, or breach of a
covenant or agreement which is specifically dealt with elsewhere, and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the issuers or the guarantor, as
the case may be, by the trustee or to the issuers or the guarantor and the
trustee for such series of notes by the holders of at least 25% in principal
amount of all Outstanding notes of such series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" under the indenture;
(4) an event of default shall have occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing any Debt of either of us
or any Restricted Subsidiary of either of us, which Debt is outstanding in a
principal amount in excess of $25,000,000 in the aggregate, and such default
shall result in such Debt becoming, whether by declaration or otherwise, due and
payable prior to the date on which it would otherwise become due and payable or
a default in any payment when due at final maturity of any such Debt;
(5) any Person entitled to take the actions described in this section,
after the occurrence of any event of default under any agreement or instrument
evidencing any Debt in excess of $25,000,000 in the aggregate of either of us or
any Restricted Subsidiary of ours, shall commence judicial proceedings to
foreclose upon our assets or assets of any of our subsidiaries having an
aggregate value in excess of $25,000,000, or shall have exercised any right
under applicable law or applicable security documents to take ownership of such
assets in lieu of foreclosure;
(6) final judgments or orders rendered against either of us or any
Restricted Subsidiary which require the payment in money, either individually or
in an aggregate amount, that is more than $25,000,000 and either
(a) an enforcement proceeding shall have been commenced by any
creditor upon such judgment or order or
(b) there shall have been a period of 60 days during which a stay of
enforcement of such judgment or order, by reason of pending appeal or
otherwise, was not in effect;
(7) the entry of a decree or order by a court having jurisdiction in the
premises adjudging either of us or the guarantor as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of either of us or the guarantor
under the Federal Bankruptcy Code or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of either of us or the guarantor or of any
32
substantial part of our respective properties, or ordering the winding up or
liquidation of our affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days;
(8) the institution by either of us or the guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by any of us to the
institution of bankruptcy or insolvency proceedings against us, or the filing by
any of us of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable federal or state law,
or the consent by any of us to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of either of us or the guarantor or of any substantial part of
our respective properties, or the making by any of us of an assignment for the
benefit of creditors, or the admission by any of us in writing of our inability
to pay our debts generally as they become due; and
(9) the guarantee ceases to be in full force and effect or is declared
null and void or the guarantor denies that it has any further liability under
the guarantee, or gives notice to such effect other than by reason of the
termination of the indenture or the release of the guarantee in accordance with
the indenture.
The indenture provides that if an Event of Default for any series of notes
specified above other than an Event of Default of the type described in clauses
(7) and (8) above shall occur and be continuing, either the trustee or the
holders of at least 25% in principal amount of the Outstanding notes of such
series may declare the principal of all notes of such series to be due and
payable immediately.
If an Event of Default specified in clause (7) or (8) above shall occur
and be continuing, then the principal of all of the notes shall be due and
payable immediately without any declaration or other act on the part of the
trustee or any holder.
In certain cases, the holders of a majority in principal amount of the
Outstanding notes of any series may on behalf of the holders of all notes of
such series rescind and annul a declaration of acceleration.
The indenture provides that the trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by the
indenture. No holder of notes of any series may institute any proceedings,
judicial or otherwise, to enforce the indenture except in the case of failure of
the trustee, for 60 days, to act after it has received a request to enforce such
indenture by the Holders of at least 25% in aggregate principal amount of the
then Outstanding notes of such series in the case of an Event of Default other
than the type described in clauses (7) and (8) above or a request to enforce
such indenture by the holders of at least 25% in aggregate principal amount of
all of the notes then Outstanding in the case of an Event of Default specified
in clauses (7) and (8) above, and an offer of reasonable indemnity.
This provision will not prevent any holder of notes from enforcing payment
of the principal on the notes and any premium and interest on the notes at the
respective due dates. The holders of a majority in aggregate principal amount of
the notes of any series then outstanding may direct the time, method and place
of conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on it with respect to the notes of such
series.
The trustee may, however, refuse to follow any direction that it
determines may not lawfully be taken or would be illegal or in conflict with the
indenture or involve it in personal liability or which would be unjustly
prejudicial to holders not joining therein.
The indenture provides that the trustee will, within 90 days after the
occurrence of a default with respect to the notes of any series, give to the
holders of notes of such series notice of such default, if such
33
default has not been cured or waived. Except in the case of a default in the
payment of principal of or any premium or interest on, or in the payment of any
sinking fund installment in respect of, any note, the trustee shall be protected
in withholding such notice if it determines in good faith that the withholding
of such notice is in the interest of the holders of the notes.
We will be required to file with the trustee annually an officers'
certificate as to compliance with all conditions and covenants under the terms
of the indenture.
MODIFICATION AND WAIVER
Subject to certain exceptions, we, along with the guarantor and the
trustee, may amend the indenture, including the guarantee, only with the consent
of the holders of a majority in principal amount of the outstanding notes of
each series affected by such modification or amendment. However, no such
modification or amendment may, without the consent of the holder of each
outstanding note affected thereby:
(1) change the stated maturity of the principal of or any premium or any
installment of interest on any note, or reduce the principal amount of any note
or any premium or the rate of any interest on any note, or change any obligation
of the issuers to pay additional amounts contemplated by the indenture, with
limited exceptions, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the maturity of the note or the amount thereof provable in
bankruptcy; or
(2) adversely affect any right of repayment at the option of any holder of
notes, or change any place of payment where or the currency in which the notes
or any premium or interest on the notes is payable;
(3) impair the right to institute suit for the enforcement of any such
payment on or after the stated maturity of the notes or, in the case of
redemption or repayment at the option of the holder, on or after the redemption
date or repayment date, as the case may be;
(4) adversely affect any right to exchange any note provided pursuant to
the indenture;
(5) reduce the percentage in principal amount of the outstanding notes of
any series, the consent of whose holders is required for any supplemental
indenture, for any waiver of compliance with certain provisions of the indenture
which affect the notes or certain defaults applicable to the notes and their
consequences provided for in the indenture;
(6) reduce the requirements of under the indenture for quorum or voting
with respect to any series of notes;
(7) modify any of the provisions of Sections 902, 513 or 1011 of the
indenture, except to increase any such percentage or to provide that certain
other provisions of the indenture which affect the notes cannot be modified or
waived without the consent of the holder of each outstanding note affected
thereby;
(8) modify the ranking or priority of any series of notes or the
guarantee; or
(9) release the guarantor from any of its obligations under the guarantee
or the indenture other than in accordance with the terms of the indenture.
34
We, along with the guarantor and trustee, may amend the indenture without
the consent of any holder of notes, to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor corporation of the
obligations of the issuers or the guarantor under the indenture;
(3) add guarantees or collateral security with respect to the notes;
(4) add to the covenants of the issuers for the benefit of the holders or
to surrender any right or power conferred upon the issuers or the guarantor;
(5) make any change that does not adversely affect the rights of any
holder; or
(6) comply with any requirement of the SEC in connection with the
qualification of the indenture under the Trust Indenture Act of 1939.
We may, with respect to any series of notes, choose in certain particular
instances not to comply with any term, provision or condition which affects the
notes of such series set forth in the indenture if the holders of at least a
majority in principal amount of the notes of each series affected by such term,
provision or condition, by act of such holders, waive such compliance in such
instance with such term, provision or condition. No such waiver shall extend to
or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, our obligations and the
duties of the trustee to holders of notes of each series in respect of any such
term, provision or condition shall remain in full force and effect. The holders
of:
o a majority in principal amount of the outstanding notes of any series
in the case of an Event of Default specified in (1), (2), (3) or (6)
in "-Events of Default," above
o or of all then outstanding notes in the case of an Event of
Default specified in (4) or (5) in "-Events of Default," above
may, on behalf of all such holders, waive any past default under the indenture
with respect to such notes except a default in the payment of the principal of
or any premium or any interest on the notes and except a default in respect of a
covenant or provision the modification or amendment of which would require the
consent of the holder of each outstanding note of each series affected thereby.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Pursuant to the indenture, we may not enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve, or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of our
respective property, business or assets, except:
(1) any subsidiary of either of the issuers may be merged or consolidated
with or into either of the issuers if the respective issuer is the continuing or
surviving corporation, or with or into any one or more wholly-owned subsidiaries
of issuer if the wholly-owned subsidiary or subsidiaries is the continuing or
surviving corporation;
(2) the issuers or any wholly-owned subsidiary of the issuers may sell,
lease, transfer or otherwise dispose of any or all of their assets upon
voluntary liquidation or otherwise to either of the issuers or any
35
other wholly-owned subsidiary of the issuers or may sell, lease, transfer or
otherwise dispose of any or all of their assets upon voluntary liquidation or
otherwise to any non-wholly-owned subsidiary of the issuers for fair market
value;
(3) any non-wholly-owned subsidiary of the issuers may sell, lease,
transfer or otherwise dispose of any or all of its assets upon voluntary
liquidation or otherwise to the issuers or any wholly-owned subsidiary of the
issuers for fair market value or may sell, lease, transfer or otherwise dispose
of any or all of its assets upon voluntary liquidation or otherwise to any other
non-wholly-owned subsidiary of the issuers; and
(4) the issuers or any subsidiary of either of the issuers may be merged
or consolidated with or into another entity;
provided that no Default or Event of Default shall have occurred and be
continuing or would occur as a result thereof; and provided further that if the
issuers shall not be the continuing or surviving corporation, such continuing or
surviving corporation shall succeed to the indenture.
The indenture also provides that the guarantor shall not consolidate with
or merge with or into any other entity or convey, sell, assign, transfer, lease
or otherwise dispose of its properties and assets substantially as an entirety
to any other entity other than any of the issuers unless:
(1) the entity formed by or surviving such consolidation or merger if
other than the guarantor or to which such properties and assets are transferred
assumes all of the obligations of such guarantor under the indenture and the
guarantee, pursuant to a supplemental indenture in form and substance
satisfactory to the trustee;
(2) immediately after giving effect to such transaction, no Default or
Event of Default has occurred and is continuing; and
(3) the guarantor delivers, or causes to be delivered, to the trustee, in
form and substance reasonably satisfactory to the trustee, an officers'
certificate and an opinion of counsel, each stating that such transaction
complies with the requirements of the indenture.
PAYMENT OF ADDITIONAL AMOUNTS
The indenture provides that any amounts paid by the issuers or their
assignee or any successor thereto or paid by any successor to the issuers will
be paid without deduction for taxes collected for the account of the United
Kingdom or the jurisdiction of incorporation or residence other than the United
States of any assignee of the issuers or any successor to either issuer or the
guarantor (an "Other Jurisdiction") or, if deduction of taxes shall at any time
be required by the United Kingdom or an Other Jurisdiction, the issuers, their
assignee or any relevant successor will pay such additional amounts ("Additional
Amounts") in respect of principal, premium or interest as may be necessary in
order that the net amounts paid to the holders of the notes or the trustee under
the indenture, after such deduction, shall equal the respective amounts of
principal, premium or interest as specified in the notes to which such holders
or the trustee are entitled; provided, however, that the foregoing shall not
apply to
(1) any taxes which would not have been so imposed but for the fact that
the holder or beneficial owner of the relevant note is or has been a
domiciliary, national or resident of, has been engaged in business, has
maintained a permanent establishment, or is or has been physically present in,
the United Kingdom or the Other Jurisdiction, or otherwise has or has had some
connection with the United Kingdom
36
or the Other Jurisdiction other than the holding or ownership of a note, or the
collection of principal of, premium and interest on, or the enforcement of, a
note or the guarantee,
(2) any taxes which would not have been so imposed but for the fact that
the relevant note was presented more than thirty days after the date such
payment became due or was provided for, whichever is later,
(3) any taxes charges which are payable otherwise than by deduction or
withholding on or in respect of the relevant note or guarantee,
(4) any taxes which would not have been so imposed but for the holders
failure to comply with any reporting requirements concerning the nationality,
residence, identity or connection with the United Kingdom or the Other
Jurisdiction or any other relevant jurisdiction of the holder or beneficial
owner of the relevant note,
(5) any taxes (A) which would not have been so imposed if the beneficial
owner of the relevant note had been the holder of such note, or (B) which, if
the beneficial owner of such note had held the note as the holder of such note,
would have been excluded pursuant to clauses (1) through (4) above, or
(6) any estate, inheritance, gift, sale, transfer, personal property or
similar tax.
The indenture does not provide for the payment of additional amounts with
respect to the indenture or the guarantee due to any deduction requirement
imposed by any governmental unit other than the United Kingdom or an Other
Jurisdiction.
DEFEASANCE
With respect to any series of notes, we, at our option:
(1) will be discharged from any and all obligations in respect of such
series of notes except for certain obligations to replace stolen, lost or
mutilated notes, maintain paying agencies, and hold money for payment in trust;
or
(2) will not be subject to certain covenants in the indenture and any
other specified covenants with respect to such series of notes, in each case if
the issuers deposit with the trustee, in trust, money or Government Obligations
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient to pay
all the principal including any mandatory sinking fund payments of, and interest
on, the outstanding notes of the relevant series on the dates such payments are
due in accordance with the terms thereof.
To exercise any such option, we are required to deliver to the trustee the
following:
(1) an opinion of counsel to the effect that the deposit and related
defeasance would not cause the holders of the notes of such series to recognize
income, gain or loss for federal income tax purposes;
(2) in the case of a discharge pursuant to clause (1) above, either a
ruling to the effect specified in this clause (2) received from or published by
the United States Internal Revenue Service or an opinion that there has been a
change in applicable federal income tax law to such effect; and
(3) an officer's certificate stating that no Event of Default with respect
to such series of notes has occurred and is continuing.
37
BOOK-ENTRY; DELIVERY AND FORM
GENERAL. Except as set forth below, the notes will be represented by one
or more fully registered global notes in book-entry form (each, a "global
note"). Each global note will be deposited with the trustee, as custodian for,
and registered in the name of a DTC or nominee of DTC. The old notes to the
extent validly tendered and accepted and directed by their holders in their
letters of transmittal, will be exchanged through book-entry electronic transfer
for the global note.
Notes that are issued as described below under "-Physical Notes" will be
issued in certificated form. Upon the transfer of a note of any series in
certificated form, such note will be exchanged for an interest in a global note
representing the principal amount of notes being transferred, unless the global
notes for such series have previously been exchanged for notes in certificated
form.
The Global Notes. We expect that pursuant to procedures established by DTC
(1) upon deposit of the global notes, DTC or its custodian will
credit, on its internal system, the principal amount of the individual
beneficial interests represented by the global notes to the respective
accounts of persons who have accounts with DTC and
(2) ownership of beneficial interests in the global notes will be
shown on, and the transfer of such ownership will be effected only
through:
o records maintained by DTC or its nominee with respect to interests of
persons who have accounts with DTC ("participants") and
o the records of participants with respect to interests of persons other
than participants.
So long as DTC, or its nominee, is the registered owner or holder of the
global notes, DTC or such nominee, as the case may be, will be considered the
sole record owner or holder of the notes represented by the global notes for all
purposes under the indenture. No beneficial owner of an interest in the global
notes will be able to transfer such interest except in accordance with DTC's
procedures, in addition to those provided for under the indenture.
We will make payments of the principal of, or premium and interest on, the
global notes to DTC or its nominee, as the registered owner of the global notes.
None of the issuers, the trustee or any paying agent under the indenture will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the global
notes or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
We expect that DTC or its nominee, upon receipt of any payment of the
principal of, or premium and interest on, the global notes, will credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the global notes as
shown on the records of DTC or its nominee. We also expect that payments by
participants to owners of beneficial interests in the global notes held through
such participants will be governed by standing instructions and customary
practice as is now the case with securities held for the accounts of customers
registered in the names of nominees for such customers. Such payments will be
the responsibility of such participants.
Transfers between participants in DTC will be effected in accordance with
DTC rules and will be settled in immediately available funds. If a holder
requires physical delivery of the notes for any reason, including to sell notes
to persons in states which require physical delivery of the notes, or to pledge
such
38
securities, such holder must transfer its interest in the global notes in
accordance with the normal procedures of DTC and in accordance with the
procedures set forth in the indenture.
DTC has advised the issuers and the guarantor that DTC will take any
action permitted to be taken by a holder of notes only at the direction of one
or more participants to whose account interests in the global notes are credited
and only in respect of the aggregate principal amount of notes as to which such
participant has given such direction. However, if there is an Event of Default
under the indenture, DTC will exchange the global notes for physical notes,
which it will distribute to its participants.
DTC has advised the issuers and the guarantor as follows:
(1) DTC is a limited purpose trust company organized under the laws of
the State of New York,
(2) a member of the Federal Reserve System,
(3) a "clearing corporation" within the meaning of the Uniform
Commercial Code and
(4) a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act.
DTC was created to hold securities for its participants and facilitate the
clearance and settlement of securities transactions between participants through
electronic book-entry changes in accounts of its participants, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing corporations
and certain other organizations. Indirect access to the DTC system is available
to others such as banks, brokers, dealers and trust companies and clear through
or maintain a custodial relationship with a participant, either directly or
indirectly ("indirect participants").
Although DTC and its participants are expected to follow the foregoing
procedures in order to facilitate transfers of interests in the global notes
among participants, they are under no obligation to perform such procedures, and
such procedures may be discontinued at any time. Neither the issuers nor the
trustee will have any responsibility for the performance by DTC or its
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations.
Physical Notes. Interests in the global notes will be exchangeable or
transferable, as the case may be, for notes issued in certificated, registered
form without coupons ("physical notes") if:
(1) DTC notifies us that it is unwilling or unable to continue as
depositary for such global notes, or DTC ceases to be a "clearing agency"
registered under the Exchange Act, and a successor depositary is not
appointed by us within 90 days, or
(2) we, in our discretion, at any time determine not to have all of
the notes represented by a global note or
(3) an Event of Default has occurred and holders of more than 25%
aggregate principal amount of the notes at the time outstanding
represented by global notes advise the trustee through DTC or a successor
depositary in writing that the continuation of a book-entry system through
DTC or such depositary with respect to the global notes is no longer
required.
39
Upon the occurrence of any of the above events, we will cause the appropriate
physical notes to be delivered.
THE TRUSTEE
The indenture provides that, except during the continuance of an Event of
Default, the trustee will perform only such duties as are specifically set forth
in the indenture. If an Event of Default has occurred and is continuing, the
trustee will exercise such rights and powers vested in it under the indenture
and use the same degree of care and skill in its exercise as a prudent person
would exercise under the circumstances in the conduct of such person's own
affairs.
If the trustee becomes a creditor of any issuer or the guarantor, the
indenture and provisions of the Trust Indenture Act of 1939 incorporated by
reference in the indenture limit the trustee's rights to obtain payment of
claims in certain cases or, to realize on certain property received by it in
respect of any such claims, as security or otherwise. The trustee is permitted
to engage in other transactions; however, if it acquires any conflicting
interest it must eliminate such conflict or resign.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the notes will be made in immediately available funds. All
payments of principal, any premium, and interest will be made by the issuers in
immediately available funds.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the issuers
or the guarantor shall have any liability for any obligations of the issuers or
the guarantor under the guarantee, any series of notes or the indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each holder of notes by accepting a note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the notes and the guarantee. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC that
such waiver is against public policy.
TRANSFER
The notes will be issued in registered form and will be transferable only
upon the surrender of the notes being transferred for registration of transfer.
The issuer may require payment of a sum sufficient to cover any tax, assessment
or other governmental charge payable in connection with certain transfers and
exchanges.
GOVERNING LAW
The indenture provides that it and the notes will be governed by, and
construed in accordance with, the laws of the State of New York to the extent
that the application of the law of another jurisdiction would not otherwise be
required.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the indenture. Reference
is made to the indenture for a full disclosure of all such terms, as well as any
other terms used in this prospectus for which no definition is provided.
40
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have correlative meanings.
"Attributable Debt" means, as to any particular lease under which either
of the issuers or any Restricted Subsidiary is at the time liable for a term of
more than 12 months, at any date as of which the amount of the debt under the
lease is to be determined, the total net amount of rent required to be paid by
either the issuers or any Restricted Subsidiary under such lease during the
remaining term of the lease (excluding any subsequent renewal or other extension
options held by the lessee), discounted from the respective due dates of such
rent to such date at the rate per annum equivalent to the interest rate inherent
in such lease. The net amount of rent required to be paid under any such lease
for any such period shall be:
o the aggregate amount of the rent payable by the lessee with respect
to such period EXCLUDING
o amounts required to be paid on account of maintenance and repairs,
services, insurance, taxes, assessments, water rates and similar
charges and contingent rents.
In the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount of rent shall include the lesser of
(1) the total discounted net amount of rent required to be paid from the
later of the first date upon which such lease may be so terminated or the date
of the determination of such net amount of rent, as the case may be, and
(2) the amount of such penalty in which event no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Consolidated Net Tangible Assets" means the total amount of assets
appearing on our most recent Consolidated balance sheet of, prepared in
accordance with GAAP after deducting from such assets
(1) all current liabilities excluding any current liabilities which are by
their terms extendible or renewable at the option of the obligor on such
liabilities to a time more than 12 months after the time as of which the amount
of such liabilities is being computed and
(2) all goodwill, trade names, trademarks, patents, unamortized debt
discount less unamortized premium and expense and other like intangibles.
"Consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Credit Facility" means the Credit Agreement, dated as of December 12,
1996, among USI American Holdings, Inc., USI Funding, Inc., as borrowers, U.S.
Industries, as guarantor, Bank of America Illinois, as Issuing Bank and
Swingline Bank, the additional financial institutions set forth in that
agreement, as lenders, Bank of America National Trust and Savings Association,
as Agent, and BA
41
Securities, Inc., as Arranger, as such agreement may be amended from time to
time or any one or more renewals, extension, refinancings, or refundings of such
facility.
"Debt" means (without duplication) indebtedness for borrowed money
evidenced by notes, bonds, debentures or other similar instruments, and any
contingent or other obligations arising under any guarantee or similar
instrument with respect to such debt.
"Debt Basket" shall have the meaning set forth in the "Limitation on Sale
and Leaseback Transactions" covenant.
"Depository Trust Company" or "DTC" means The Depository Trust Company,
its nominees, and their respective successors.
"Existing Funded Debt" means all Funded Debt other than Funded Debt
outstanding pursuant to the Credit Facility existing on the date of the
indenture.
"Funded Debt" means Debt that by its terms
(1) matures more than one year from the date of original issuance or
creation or
(2) matures within one year from such date but is renewable or extendible
at the option of any obligor to a date more than one year from such date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession
in the United States, from time to time.
"Government Obligations" means securities which are:
(1) direct obligations of the government which issued the Currency in
which the notes are payable; or
(2) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government which issued the Currency in which
the notes are payable, the payment of which is unconditionally guaranteed by
such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer of such obligations and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"Guarantee" means the unconditional guarantee by the guarantor, pursuant
to Article 12 of the indenture, which is subject to release under certain
circumstances as described herein.
42
"Incur" means, with respect to any Debt of any Person, to create, issue,
incur by conversion, exchange or otherwise, assume, guarantee or otherwise
become, directly or indirectly, liable in respect of such Debt or the recording,
as required pursuant to GAAP or otherwise, of any such Debt on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall
have correlative meanings); provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time becoming Debt
shall not be deemed an Incurrence of such Debt.
"Lien" means any pledge, mortgage, lien, charge, encumbrance or security
interest.
"Lien Basket" shall have the meaning set forth in the "Limitation on
Liens" covenant.
"Maturity", when used with respect to any note, means the date on which
the principal of such note or an installment of principal becomes due and
payable as provided in such note or the indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Original Issue Date" means October 27, 1998, the date on which the notes
were originally issued.
"Original Issue Discount Security" means any note which provides for an
amount less than the principal amount of such note to be due and payable upon a
declaration of acceleration of the Maturity of such note pursuant to Section 502
of the indenture.
"Paying Agent" means any Person authorized by the issuers to pay the
principal of or any premium or any interest, on any notes on behalf of the
issuers.
"Place of Payment" means New York City, New York.
"Principal Property" means any manufacturing plant or warehouse, together
with the land upon which it is erected and fixtures comprising a part of such
plant or warehouse, owned by either of the issuers or any Restricted Subsidiary
and located in the United States, the gross book value without deduction of any
reserve for depreciation of which on the date as of which the determination is
being made is an amount which exceeds 1% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or warehouse or any portion of such
plant or warehouse together with the land upon which it is erected and fixtures
comprising a part of such plant or warehouse which, in the opinion of the Board
of Directors, is not of material importance to the total business conducted by
the issuers and their subsidiaries, taken as a whole.
"Restricted Subsidiary" means each subsidiary other than Unrestricted
Subsidiaries.
"Special Purpose Funding Subsidiary" means a direct Wholly-Owned
Subsidiary of either of the issuers:
(1) that serves as a cash management company for either of the issuers and
its respective subsidiaries and has no other material operations or business,
(2) that for every transfer of funds to it, records a corresponding
liability on its books and records to the transferor of such funds, and
(3) whose assets do not materially exceed its liabilities.
43
"Stated Maturity", when used with respect to any note or any installment
of principal of such note or interest on such note, means the date specified in
such note as the fixed date on which the principal of such note or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308 of the indenture.
"Trustee" means The First National Bank of Chicago until a successor
trustee shall have become such pursuant to the applicable provisions of the
indenture, and thereafter "trustee" shall mean or include each Person who is
then a trustee under the indenture.
"Unrestricted Subsidiary" means any subsidiary of either of the issuers
that:
(1) is organized under the laws of a jurisdiction other than a
jurisdiction in the United States of America,
(2) does not constitute a "significant subsidiary" of U.S. Industries
within the meaning of Rule 1-02(w) of Regulation S-X promulgated under the
Exchange Act or any successor provision or
(3) in the case of USI Atlantic and USI American Holdings, is or is acting
as a co-issuer or guarantor of any indebtedness of U.S. Industries that is pari
passu in right of payment with the indebtedness under the notes.
44
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion of taxation intended as a summary of
the material income tax consequences generally applicable to the exchange offer.
The statements of United States tax law set forth below are based on the laws,
regulations and administrative and judicial decisions applicable as of the date
of this prospectus, and are subject to any changes in relevant United States
authorities occurring after that date. Any such changes, which could be
retroactive, could affect the continuing validity of this discussion.
Persons considering the exchange of old notes for registered notes in the
exchange offer should consult their own tax advisors concerning the application
of United States federal income tax laws, as well as the laws of any state,
local, or other taxing jurisdiction applicable to their particular situations.
UNITED STATES FEDERAL INCOME TAXATION
The exchange of the old notes for registered notes in the exchange offer
will not be a taxable exchange for U.S. federal income tax purposes. As a
result, there will be no federal income tax consequences to a holder exchanging
an old note for a registered note in the exchange offer. A holder should have
the same adjusted basis and holding period in the registered notes as it had in
the old note immediately before the exchange.
The preceding paragraph summarizes certain of the material U.S. federal
income tax consequences associated with the exchange of the old notes for
registered notes in the exchange offer. This summary applies only to those
persons who are the initial holders of old notes, who acquired old notes for
cash and who hold old notes as capital assets, and assumes that the old notes
were not issued with "original issue discount," as defined in the Internal
Revenue Code of 1986. This summary also does not address the U.S. federal income
tax consequences of the exchange of notes not held as capital assets within the
meaning of Section 1221 of the Code, or the U.S. federal income tax consequences
to investors subject to special treatment under the U.S. federal income tax
laws, such as dealers in securities or foreign currency, tax-exempt entities,
banks, thrifts, insurance companies, persons that hold the notes as part of a
"straddle", a "hedge" against currency risk or a "conversion transaction",
persons that have a "functional currency" other than the U.S. dollar and
investors in pass-through entities. It also does not address any consequences
arising under U.S. federal gift and estate taxes or under the tax laws of any
state, local or foreign jurisdiction.
UNITED KINGDOM INCOME TAXATION
Payments of principal and interest on a registered notes by USI Atlantic
under the guarantee received by a beneficial owner not otherwise taxable in the
United Kingdom will generally be exempt from United Kingdom tax. However, USI
Atlantic's understanding of current Inland Revenue practice is that where a
United Kingdom company, including a company considered to be a United Kingdom
"dual resident" for tax purposes such as USI Atlantic, is obliged to make a
payment of interest under a guarantee which in default would be enforced in the
United Kingdom, that payment will have a United Kingdom source. Accordingly, the
payment will be subject to United Kingdom withholding tax in the absence of an
available exemption under an applicable double taxation treaty or convention.
Such an exemption should be available under the double taxation treaty between
the United States and the United Kingdom to beneficial owners of registered
notes who timely satisfy the conditions for exemption therein and who comply
with the relevant administrative arrangements. If, however, an exemption is not
available and a United Kingdom withholding tax is imposed on a payment in
respect of interest or any additional interest under the guarantee, subject to
the exceptions set forth above under "Description of the Registered
45
Notes--Payment of Additional Amounts," the issuers or the guarantor or their
successors or assigns, will be obligated to pay or cause to be paid such
Additional Amounts in respect of the relevant interest as may be necessary in
order that the net amount of interest paid to a holder of a registered note
shall equal the amount of interest to which such holder is entitled. If the
issuers or the guarantor are required to pay Additional Amounts by reason of
current Inland Revenue practice, the issuers may redeem the notes in accordance
with the provisions described under "Description of the Registered
Notes-Redemption in Circumstances Involving Taxation."
Beneficial owners of registered notes should consult their own tax
advisors as to the conditions for exemption and the relevant administrative
arrangements.
46
NOTICE TO CANADIAN RESIDENTS
RESALE RESTRICTIONS
The distribution of the notes in Canada is being made only on a private
placement basis exempt from the requirement that the issuers prepare and file a
prospectus with the securities regulatory authorities in each province where
trades of notes are effected. Accordingly, any resale of the notes in Canada
must be made in accordance with applicable securities laws which will vary
depending on the relevant jurisdiction, and which may require resales to be made
in accordance with available statutory exemptions or pursuant to a discretionary
exemption granted by the applicable Canadian securities regulatory authority.
Purchasers are advised to seek legal advice prior to any resale of the notes.
REPRESENTATIONS OF PURCHASERS
Each purchaser of notes in Canada who receives a purchase confirmation
will be deemed to represent to the issuers and the dealer from whom such
purchase confirmation is received that:
(1) such purchaser is entitled under applicable provincial securities laws
to purchase such notes without the benefit of a prospectus qualified under such
securities laws,
(2) where required by law, such purchaser is purchasing as principal and
not as agent and
(3) such purchaser has reviewed the text above under "-Resale
Restrictions."
RIGHTS OF ACTION (ONTARIO PURCHASERS)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
section 32 of the Regulation under the Securities Act (Ontario). As a result,
Ontario purchasers must rely on other remedies that may be available, including
common law rights of action for damages or rescission or rights of action under
the civil liability provisions of the U.S. federal securities laws. Following a
decision of the U.S. Supreme Court, it is possible that Ontario purchasers will
not be able to rely upon the remedies set out in Section 12(2) of the United
States Securities Act of 1933 where securities are being offered under a U.S.
private placement memorandum such as this document.
ENFORCEMENT OF LEGAL RIGHTS
All of the issuers' directors and officers as well as the experts named in
this prospectus may be located outside of Canada and, as a result, it may not be
possible for Canadian purchasers to effect service of process within Canada upon
the issuer or such persons. All or a substantial portion of the assets of the
issuer and such persons may be located outside of Canada and, as a result, it
may not be possible to satisfy a judgment against the issuer or such persons in
Canada or to enforce a judgment obtained in Canadian courts against the issuer
or persons outside of Canada.
47
NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of notes to whom the Securities Act (British Columbia) applies
is advised that such purchaser is required to file with the British Columbia
Securities Commission a report within ten days of the sale of any notes acquired
by such purchaser pursuant to this Offering. Such report must be in the form
attached to British Columbia Securities Commission Blanket Order BOR #95/17, a
copy of which may be obtained from the issuers. Only one such report must be
filed in respect of notes acquired on the same date and under the same
prospectus exemption.
TAXATION AND ELIGIBILITY FOR INVESTMENT
Canadian purchasers of notes should consult their own legal and tax
advisors with respect to the tax consequences of an investment in the notes in
their particular circumstances and with respect to the eligibility of the notes
for investment by the purchaser under relevant Canadian legislation.
48
LEGAL MATTERS
The validity of the registered notes and the registered guarantees have
been passed upon for U.S. Industries, USI Atlantic and USI American Holdings by
Weil, Gotshal & Manges LLP, New York, New York.
EXPERTS
The consolidated financial statements and schedule of U.S. Industries.
appearing in its Annual Report on Form 10-K for the year ended October 3, 1998,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated in this prospectus by
reference. Their report as to the years ended September 30, 1997 and 1996, is
based in part on the report of PricewaterhouseCoopers LLP. Such consolidated
financial statements and schedule are incorporated in this prospectus by
reference in reliance upon such report given upon the authority of such firms as
experts in accounting and auditing.
49
U.S. INDUSTRIES, INC.
USI AMERICAN HOLDINGS, INC.
USI ATLANTIC CORP.
$250,000,000
71/8% Senior Notes due 2003
PROSPECTUS
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED
IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT OFFER TO SELL OR BUY ANY SECURITIES
IN ANY JURISDICTION WHERE IT IS UNLAWFUL.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The issuers and the guarantor are Delaware corporations. Section 145 of the
Delaware General Corporation Law (the "DGCL") provides that a Delaware
corporation has the power to indemnify its officers and directors in certain
circumstances.
Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify
any director or officer, or former director or officer, who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of his
service as director, officer, employee or agent of the corporation, or his
service, at the corporation's request, as a director, officer, employee or agent
of another corporation or enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided that such director or officer had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) or (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; provided
that indemnification provided for by Section 145 or granted pursuant thereto
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and
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empowers the corporation to purchase and maintain insurance on behalf of a
director of officer of the corporation against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
In addition, Section 102(b)(7) of the DGCL permits Delaware corporations to
include a provision in their certificates of incorporation eliminating or
limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provisions shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or that
involved intentional misconduct or a knowing violation of law, (iii) for
unlawful payment of dividends or other unlawful distributions, or (iv) for any
transactions from which the director derived an improper personal benefit.
Each of the issuers' and the guarantor's Certificates of Incorporation
currently provide that each Director shall not be personally liable to each
respective corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director and require each respective corporation to
indemnify its directors and officers to the fullest extent permitted by the
DGCL.
The By-Laws of each of the issuers provide that the issuers shall, and the
By-Laws of the guarantor provide that the guarantor may, provide to any director
or officer advances for expenses incurred in defending an action, suit or
proceeding brought against such person because of his or her status as an
officer or director upon receipt of an undertaking to repay such advances unless
it is ultimately determined that he or she is entitled to indemnification by the
respective corporation.
The directors and officers of each of the issuers and the guarantor are
insured against certain civil liabilities, including liabilities under federal
securities laws, which might be incurred by them in such capacity.
ITEM 21. EXHIBIT AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
Exhibit No. Description of Document
----------- -----------------------
3.1(a) Amended and Restated Certificate of Incorporation of USI
(filed as Exhibit 3.1 to the Form 10-K).*
3.1(b) Certificate of Incorporation of USI American Holdings (filed
as Exhibit 3.1(a) to the Registration Statement on Form S-4 of
USI American Holdings (Registration No. 333-20183 (the "USIAH
Form S-4")).*
3.1(c) Amended and Restated Certificate of Incorporation of USI
Atlantic.***
II-2
3.2(a) Amended and Restated Bylaws of USI (filed as Exhibit 3.2 to
the Form 10-K).*
3.2(b) Bylaws of USI American Holdings (filed as Exhibit 3.2(a) to
the USIAH Form S- 4).*
3.2(c) Amended and Restated Bylaws of USI Atlantic (filed as Exhibit
3.2 to the Annual Report on Form 10-k of USI Atlantic for the
year ended September 28, 1996).*
4.1 Indenture, dated as of October 27, 1998, among the Issuers,
the Guarantor and The First National Bank of Chicago, as
Trustee (filed as Exhibit 4.4 to the Form 10-K).*
4.2 Specimen Registered Notes (included in Exhibit 4.1).*
4.3 Registration Rights Agreement, dated October 22, 1998, among
the Issuers, the Guarantor and Credit Suisse First Boston
Corporation on behalf of the Initial Purchasers.***
5.1 Opinion of Weil, Gotshal & Manges LLP.**
10.1 Credit Agreement, dated December 12, 1996, among the Issuers,
the Guarantor, Various Banks named therein, Bank of America
National Trust and Savings Association, as Issuing Bank,
Swingline Bank and Agent, and BA Securities, Inc., as Arranger
(filed as Exhibit 10.13 to the Form 10-K).*
12.1 Computation of Ratio of Earnings to Fixed Charges.****
23.1 Consent of Ernst & Young LLP.***
23.2 Consent of PricewaterhouseCoopers LLP.***
23.4 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).**
24.1 Powers of Attorney.**
25.1 Form T-1 Statements of Eligibility under the Trust Indenture
Act of 1939, as amended, of the Trustee under the
Indenture.***
99.1 Form of Letter of Transmittal.****
99.2 Form of Notice of Guaranteed Delivery.***
99.3 Form of Letter to Brokers.***
99.4 Form of Letter to Clients.***
- ------------------
* Incorporated herein by reference.
** Previously filed.
*** Filed herewith.
**** To be filed by Amendment
(b) Financial Statement Schedules.
II. Valuation and Qualifying Accounts (included in Item 8 of the
Company's 1998 Annual Report), which is incorporated herein by reference.
(c) Not applicable.
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ITEM 22. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(b) The undersigned Registrants hereby undertake to deliver or cause to
be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report, to security
holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3
of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim
financial information.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
(d) The undersigned Registrants hereby undertake to respond to requests
for information that is incorporated by reference into the
prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within
one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of the Registration Statement
through the date of responding to the request.
II-4
(e) The undersigned Registrants hereby undertake to supply by means of a
post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the
subject of and included in the Registration Statement when it became
effective.
(f) The undersigned hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (f)(1)(i) and (f)(1)(ii) doe not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Act of 1934 that
are incorporated by reference in the registration statement.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrants named
below have duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Iselin, State of New
Jersey, on March 5, 1999.
USI AMERICAN HOLDINGS, INC.
USI ATLANTIC CORP.
U.S. INDUSTRIES, INC.
By: /s/ George H. MacLean
-----------------------------------------
Name: George H. MacLean
Title: Senior Vice President, General
Counsel and Secretary
USI AMERICAN HOLDINGS, INC.
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------ ---------------------
* Chairman of the Board and March 5, 1999
- ------------------------------ Chief Executive Officer
David H. Clarke (Principal Executive Officer)
* Director, President and
- ------------------------------ Chief Operating Officer March 5, 1999
John G. Raos
/s/ George H. MacLean Director, Senior Vice March 5, 1999
- ------------------------------ President, General Counsel
George H. MacLean and Secretary
Senior Vice President and March 5, 1999
* Chief Financial Officer
- ------------------------------ (Principal Financial Officer)
James O'Leary
* Corporate Controller March 5, 1999
- ------------------------------ (Principal Accounting
Robert P. Noonan Officer)
By: /s/ George H. MacLean
------------------------------
George H. MacLean
Attorney-in-fact
II-6
USI ATLANTIC CORP.
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------ ---------------------
* Chairman of the Board and Chief March 5, 1999
- ----------------------------- Executive Officer (Principal Executive
David H. Clarke Officer)
* Director March 5, 1999
- -----------------------------
Brian C. Beazer
* Director March 5, 1999
- -----------------------------
Sir Harry Solomon
* Director March 5, 1999
- -----------------------------
Royall Victor III
/s/ George H. MacLean Director, Senior Vice President, March 5, 1999
- ----------------------------- General Counsel and Secretary
George H. MacLean
* Senior Vice President and Chief March 5, 1999
- ----------------------------- Financial Officer (Principal Financial
James O'Leary Officer)
* Corporate Controller (Principal March 5, 1999
- ----------------------------- Accounting Officer)
Robert P. Noonan
By: /s/ George H. MacLean
----------------------------
George H. MacLean
Attorney-in-fact
II-7
U.S. INDUSTRIES, INC.
SIGNATURE TITLE DATE
- ------------------------------ ------------------------------ ---------------------
* Chairman of the Board and Chief March 5, 1999
- ----------------------------- Executive Officer (Principal Executive
David H. Clarke Officer)
* Director, President and Chief Operating March 5, 1999
- ----------------------------- Officer
John G. Raos
* Director March 5, 1999
- -----------------------------
Brian C. Beazer
Director March , 1999
- -----------------------------
William E. Butler
* Director March 5, 1999
- -----------------------------
John J. McAtee, Jr.
Director March 5, 1999
- -----------------------------
The Hon. Charles H. Price II
* Director March 5, 1999
- -----------------------------
Sir Harry Solomon
* Director March 5, 1999
- -----------------------------
Royall Victor III
Director March 5, 1999
- -----------------------------
Mark Vorder Bruegge
* Director March 5, 1999
- -----------------------------
Robert R. Womack
* Senior Vice President and Chief March 5, 1999
- ----------------------------- Financial Officer (Principal Financial
James O'Leary Officer)
* Corporate Controller March 5, 1999
- ----------------------------- (Principal Accounting Officer)
Robert P. Noonan
By: /s/ George H. MacLean
------------------------------
George H. MacLean
Attorney-in-fact
II-8
EXHIBIT INDEX
Exhibit No. Description of Document
----------- -----------------------
3.1(a) Amended and Restated Certificate of Incorporation of USI
(filed as Exhibit 3.1 to the Form 10-K).*
3.1(b) Certificate of Incorporation of USI American Holdings (filed
as Exhibit 3.1(a) to the Registration Statement on Form S-4 of
USI American Holdings (Registration No. 333-20183 (the "USIAH
Form S-4")).*
3.1(c) Amended and Restated Certificate of Incorporation of USI
Atlantic.***
3.2(a) Amended and Restated Bylaws of USI (filed as Exhibit 3.2 to
the Form 10-K).*
3.2(b) Bylaws of USI American Holdings (filed as Exhibit 3.2(a) to
the USIAH Form S- 4).*
3.2(c) Amended and Restated Bylaws of USI Atlantic (filed as Exhibit
3.2 to the Annual Report on Form 10-k of USI Atlantic for the
year ended September 28, 1996).*
4.1 Indenture, dated as of October 27, 1998, among the Issuers,
the Guarantor and The First National Bank of Chicago, as
Trustee (filed as Exhibit 4.4 to the Form 10-K).*
4.2 Specimen Registered Notes (included in Exhibit 4.1).*
4.3 Registration Rights Agreement, dated October 22, 1998, among
the Issuers, the Guarantor and Credit Suisse First Boston
Corporation on behalf of the Initial Purchasers.***
5.1 Opinion of Weil, Gotshal & Manges LLP.**
10.1 Credit Agreement, dated December 12, 1996, among the Issuers,
the Guarantor, Various Banks named therein, Bank of America
National Trust and Savings Association, as Issuing Bank,
Swingline Bank and Agent, and BA Securities, Inc., as Arranger
(filed as Exhibit 10.13 to the Form 10-K).*
12.1 Computation of Ratio of Earnings to Fixed Charges.****
23.1 Consent of Ernst & Young LLP.***
23.2 Consent of PricewaterhouseCoopers LLP.***
23.4 Consent of Weil, Gotshal & Manges LLP (included in Exhibit
5.1).**
24.1 Powers of Attorney.**
25.1 Form T-1 Statements of Eligibility under the Trust Indenture
Act of 1939, as amended, of the Trustee under the
Indenture.***
99.1 Form of Letter of Transmittal.****
99.2 Form of Notice of Guaranteed Delivery.***
99.3 Form of Letter to Brokers.***
99.4 Form of Letter to Clients.***
- ------------------
* Incorporated herein by reference.
** Previously filed.
*** Filed herewith.
**** To be filed by amendment
II-9