As filed with the Securities and Exchange Commission on January 7, 2003
Registration File No.: 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
JARDEN CORPORATION
(Exact name of registrant as specified in charter)
DELAWARE 35-1828377
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
555 THEODORE FREMD AVENUE
RYE, NY 10580
(914) 967-9400
(Address, including zip code and telephone number, including area
code, of registrant's principal executive offices)
FOR CO-REGISTRANTS, SEE "TABLE OF ADDITIONAL REGISTRANTS" ON FOLLOWING PAGE.
MARTIN E. FRANKLIN, CHAIRMAN AND CHIEF EXECUTIVE OFFICER
JARDEN CORPORATION
555 THEODORE FREMD AVENUE
RYE, NY 10580
(914) 967-9400
(Name, Address, including zip code and telephone number, including
area code, of agent for service of process)
with copies to:
ROBERT L. LAWRENCE, ESQ.
KANE KESSLER, P.C.
1350 AVENUE OF THE AMERICAS
NEW YORK, NY 10019
(212) 541-6222
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than the securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AGGREGATE
TO BE REGISTERED OFFERING PRICE (1) AMOUNT OF REGISTRATION FEE (1)
---------------- ------------------ ------------------------------
Debt Securities
Guarantees of Debt Securities (3) (4)
Common Stock, par value $.01 per share (5) (2)
Preferred Stock, par value $.01 per share (6)
Warrants
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Total......................................... $150,000,000 $13,800
(1) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any debt securities issued at a
discount.
(2) Omitted pursuant to General Instruction II.D. to Form S-3 under the
Securities Act of 1933, as amended.
(3) Any series of debt securities may be guaranteed by one or more
co-registrants.
(4) Pursuant to Rule 457(n), no separate fee is payable with respect to the
guarantees being registered hereby.
(5) Shares of common stock may be issued separately or upon conversion of
any of the debt securities, preferred stock, or warrants, each of
which are registered hereby. Shares of common stock issued upon conversion
of the debt securities and the preferred stock will be issued without the
payment of additional consideration.
(6) Shares of preferred stock may be issued separately or upon conversion of
either of the debt securities or warrants, each of which are registered
hereby. Shares of preferred stock issued upon conversion of the debt
securities will be issued without the payment of additional consideration.
-----------------------------------
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.
TABLE OF ADDITIONAL REGISTRANTS
- -------------------------------------- ---------------------------- ----------------------------- -----------------------------
STATE OR OTHER JURISDICTION ADDRESS, INCLUDING ZIP CODE
OF INCORPORATION OR I.R.S.EMPLOYER AND TELEPHONE NUMBER,
NAME ORGANIZATION IDENTIFICATION NUMBER INCLUDING AREA CODE
- -------------------------------------- ---------------------------- ----------------------------- -----------------------------
Alltrista Newco Corporation Indiana 35-2000581 *
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Alltrista Plastics Corporation Indiana 35-2000584 *
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Alltrista Zinc Products, L.P. Indiana 35-2000583 *
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Hearthmark, Inc. Indiana 35-2000585 *
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Quoin Corporation Delaware 88-0374612 *
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Tilia, Inc. Delaware 36-4491807 *
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Tilia Direct, Inc. Delaware 37-1424484 *
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Tilia International, Inc. Delaware 38-3645648 *
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*The name, address, including zip code, and telephone number of the agent for
service of process is Martin E. Franklin at 555 Theodore Fremd Avenue, Rye, NY
10580, telephone number (914) 967-9400.
THE INFORMATION IN THIS PROSPECTUS IS NOT 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.
SUBJECT TO COMPLETION, DATED JANUARY 7, 2003.
PROSPECTUS
JARDEN CORPORATION
$150,000,000
DEBT SECURITIES, COMMON STOCK,
PREFERRED STOCK, AND WARRANTS
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We may from time to time sell up to $150,000,000 aggregate initial
offering price of one or more series of our debt securities, our common stock,
$0.01 par value per share, our preferred stock, $0.01 par value per share, our
warrants to purchase debt securities, common stock, or preferred stock, or any
combination of our debt securities, common stock, preferred stock, and warrants.
These debt securities may consist of notes, debentures or other types
of debt. We will provide specific terms of these debt securities in supplements
to this prospectus. Our payment obligations under any series of debt securities
may be guaranteed by one or more of our subsidiaries which are co-registrants.
This prospectus provides a general description of the securities we may
offer. The specific terms of the securities offered by this prospectus will be
set forth in a supplement to this prospectus and will include, among other
things:
o in the case of common stock, the number of shares, purchase
price, and terms of the offering and sale thereof;
o in the case of preferred stock, the number of shares, purchase
price, the designation and relative rights, preferences,
limitations and restrictions, and the terms of the offering and
sale thereof;
o in the case of debt securities, the specific designation,
aggregate principal amount, purchase price, maturity, interest
rate, time of payment of interest, terms (if any) for the
subordination or redemption thereof, and any other specific terms
of the debt securities; and
o in the case of warrants, the title, aggregate number, price at
which it will be issued, exercise price, and designation,
aggregate principal amount and terms of the securities issuable
upon exercise of the warrants.
Any prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus, any prospectus
supplement and the additional information described under "Where You Can Find
More Information" carefully before you invest in our securities.
Our common stock trades on the New York Stock Exchange under the symbol
"JAH." On January 6, 2003, the last reported sale price of our shares on the New
York Stock Exchange was $26.01 per share.
The securities may be sold through underwriters or dealers designated
from time to time or to other purchasers directly or through agents designated
from time to time (see "Plan of Distribution").
---------------
PLEASE REFER TO "RISK FACTORS" BEGINNING ON PAGE 16 AND IN ANY
PROSPECTUS SUPPLEMENT FOR A DESCRIPTION OF THE RISKS YOU SHOULD CONSIDER WHEN
EVALUATING THIS INVESTMENT.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES TO BE ISSUED IN THE
EXCHANGE OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS __________ __, 2003.
TABLE OF CONTENTS
Page
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SUMMARY....................................................................................................... 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................................................... 6
THE COMPANY................................................................................................... 8
RISK FACTORS.................................................................................................. 16
Reductions, cancellations, or delays in customer purchases
would adversely affect our profitability.................................................................. 16
We may be adversely affected by the trend towards retail trade consolidation................................ 16
Sales of some of our products are seasonal and weather related.............................................. 16
We depend on suppliers in Asia.............................................................................. 17
Competition in our industries may hinder our ability to execute our business
strategy, achieve profitability, or maintain relationships with existing customers........................ 17
If we fail to develop new or expand existing customer relationships, our
ability to grow our business will be impaired............................................................. 18
We cannot be certain that our product innovations and marketing successes will continue..................... 18
We may experience difficulty in integrating acquired businesses, which
may interrupt our business operations..................................................................... 19
Our operations are subject to a number of Federal, state and
local environmental regulations........................................................................... 19
We may be adversely affected by remediation obligations
mandated by applicable environmental laws................................................................. 19
We depend upon key personnel................................................................................ 20
We enter into contracts with the United States government and other governments............................. 20
Our operating results can be adversely affected by changes in the cost
or availability of raw materials.......................................................................... 20
Our business could be adversely affected because of risks which are
particular to international operations.................................................................... 21
Our performance can fluctuate with the financial condition of the retail industry........................... 21
Claims made against us based on product liability could have a material
adverse effect on our business............................................................................ 21
We depend on our patents and proprietary rights............................................................. 22
We depend on a single manufacturing facility for certain essential products................................. 22
Certain of our employees are represented by labor unions.................................................... 22
Delaware law and our rights plan may limit possible takeovers............................................... 22
The market price for our common stock is volatile........................................................... 23
We may issue a substantial amount of our common stock in connection with future
acquisitions and the sale of those shares could adversely affect our stock price.......................... 23
Our stock price may be adversely affected if our stockholders sell substantial
amounts of our common stock, or our preferred stock or warrants convertible
into our common stock, in the public market following the offering........................................ 24
Since we have broad discretion in how we use the net proceeds from this
offering, we may use such proceeds in ways with which you disagree....................................... 24
Our significant indebtedness could adversely affect our financial
health, and prevent us from fulfilling our obligations under the debt securities.......................... 24
Your right to receive payments on the debt securities is junior to our existing
senior indebtedness and possibly all of our future borrowings. Further, the
3
guarantees of the debt securities are junior to all of the guarantors' existing
senior indebtedness and possibly to all their future borrowings........................................... 25
Since the debt securities are unsecured, your right to enforce remedies
is limited by the rights of holders of secured debt....................................................... 26
Not all of our subsidiaries will guarantee our obligations under the
debt securities, and the assets of the non-guarantor subsidiaries may not be
available to make payments on the debt securities......................................................... 26
We will require a significant amount of cash to service our indebtedness.
Our ability to generate cash depends on many factors beyond our control................................... 26
The indenture related to the debt securities and our senior credit facility contain various
covenants which limit our management's discretion in the operation of our business........................ 27
We may not have the ability to raise the funds necessary to finance
the change of control offer required by the indenture..................................................... 27
A public market for the debt securities may not develop..................................................... 28
Federal and state statutes allow courts, under specific circumstances, to void
guarantees and require security holders to return payments received from guarantors.......................... 28
FORWARD LOOKING STATEMENTS.................................................................................... 29
USE OF PROCEEDS............................................................................................... 31
RATIO OF EARNINGS TO FIXED CHARGES............................................................................ 31
DESCRIPTION OF THE DEBT SECURITIES............................................................................ 31
DESCRIPTION OF CAPITAL STOCK.................................................................................. 35
DESCRIPTION OF WARRANTS....................................................................................... 36
DESCRIPTION OF SENIOR INDEBTEDNESS............................................................................ 37
PLAN OF DISTRIBUTION.......................................................................................... 43
WHERE YOU CAN FIND MORE INFORMATION........................................................................... 44
EXPERTS....................................................................................................... 46
LEGAL MATTERS................................................................................................. 46
4
SUMMARY
This prospectus is part of a registration statement that Jarden
Corporation and the co-registrants (together, the "registrants") filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf registration process, the registrants may sell any combination
of the securities described in this prospectus in one or more offerings up to a
total dollar amount of $150,000,000. This prospectus provides you with a general
description of the securities the registrants may offer. Each time the
registrants sell securities, the registrants will provide a prospectus
supplement that will contain specific information about the terms of that
offering. To understand the terms of our securities, you should carefully read
this document with the applicable prospectus supplement, which may add, update,
or change information. Together these documents will give the specific terms of
the securities we are offering. You should also read the documents we have
incorporated by reference in this prospectus and in any prospectus supplement.
THE SECURITIES WE MAY OFFER
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration process.
Under the shelf registration process, we may offer from time to time up to an
aggregate of $150,000,000 of one or more series of our debt securities, our
common stock, $0.01 par value per share, our preferred stock, $0.01 par value
per share, our warrants to purchase debt securities, common stock, or preferred
stock, or any combination of our debt securities, common stock, preferred stock,
and warrants.
DEBT SECURITIES
The terms of each series of debt securities will be detailed or
determined in the manner provided in an indenture. The particular terms of each
series of debt securities will be described in a prospectus supplement relating
to the series, including any pricing supplement. We will set forth in a
prospectus supplement (including any pricing supplement) relating to any series
of debt securities being offered, among other things, the initial offering
price, the aggregate principal amount the price or prices at which we will sell
the debt securities, any limit on the aggregate principal amount of the debt
securities, the date or dates on which we will pay the principal on the debt
securities, and the rate or rates at which the debt securities will bear
interest. We have summarized general features of our debt securities under the
section entitled "Description of Debt Securities" contained in this prospectus.
COMMON STOCK
We may issue common stock, par value $0.01 per share. Holders of our
common stock are entitled to receive dividends when declared by our board of
directors, subject to the rights of holders of our preferred shares. Each holder
of common shares is entitled to one vote per share. The holders of common shares
have no preemptive or cumulative voting rights. Our credit facility contains
restrictions on our ability to pay dividends or make other distributions.
PREFERRED STOCK
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We may issue preferred stock, par value $0.01 per share, in one or more
series. Subject to the terms of our governing documents and applicable Delaware
law, our board of directors will determine the dividend, voting, conversion and
other rights and preferences of the series of preferred stock being offered.
WARRANTS
We may issue warrants for the purchase of debt securities, preferred
stock or common stock either independently or together with other securities.
Each warrant will entitle the holder to purchase the principal amount of our
debt securities, or the number of shares of preferred stock or common stock, at
the exercise price set forth in, or calculable as set forth in, the applicable
prospectus supplement
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The mailing address and telephone number of our principal executive
offices are 555 Theodore Fremd Avenue, Rye, New York, 10580, (914) 967-9400.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by us with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference
in this prospectus, except as superseded or modified herein:
(a) Our annual report on Form 10-K/A for the fiscal year ended
December 31, 2001;
(b) Our quarterly report on Form 10-Q/A for the period ended March
31, 2002;
(c) Our quarterly report on Form 10-Q/A for the period ended June 30,
2002;
(d) Our quarterly report on Form 10-Q for the period ended September
30, 2002;
(e) Our current report on Form 8-K, Date of Event - December 18,
2001, filed on January 9, 2002;
(f) Our current report on Form 8-K, Date of Event - March 28, 2002,
filed on March 28, 2002;
(g) Our current report on Form 8-K, Date of Event - March 28, 2002,
filed on March 29, 2002;
(h) Our current report on Form 8-K, Date of Event - April 24, 2002,
filed on May 9, 2002;
(i) Our current report on Form 8-K, Date of Event - May 30, 2002,
filed on June 4, 2002;
(j) Our current report on Form 8-K, Date of Event - October 17, 2002,
filed on October 24, 2002;
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(k) Our current report on Form 8-K, Date of Event - October 28, 2002,
filed on October 29, 2002;
(l) Our current report on Form 8-K, Date of Event - November 1, 2002,
filed on November 1, 2002;
(m) Our definitive proxy statement on Schedule 14A filed on April 30,
2002;
(n) The description of our common stock contained in our registration
statement on Form 8-A/A filed on May 1, 2002, including any
amendments or reports filed for the purpose of updating that
description; and
(o) The description of the preferred stock purchase rights of our
common stock contained in our registration statement on Form
8-A/A filed on May 1, 2002, including any amendments or reports
filed for the purpose of updating that description.
All of such documents are on file with the Commission. In addition, all
documents filed by Jarden Corporation pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, subsequent to the date of this prospectus and prior
to termination of the offering are incorporated by reference in this prospectus
and are a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained herein or in any
subsequently filed document that is also incorporated by reference herein
modifies or replaces such statement. Any statements so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this prospectus.
This prospectus incorporates herein by reference important business and
financial information about us that is not included in or delivered with this
prospectus. This information is available to you without charge upon written or
oral request. If you would like a copy of any of this information, please submit
your request to Jarden Corporation, 555 Theodore Fremd Avenue, Rye, NY 10580,
Attention: Corporate Secretary, or call (914) 967-9400.
7
THE COMPANY
Jarden Corporation is a leading provider of niche consumer products
used in home food preservation. We operate two distinct business groups,
consumer products and material based. Our consumer products group markets and
distributes the FoodSaver(R) line, which is the U.S. market leader in home
vacuum packaging systems and accessories and is the leading North American
manufacturer, distributor and marketer of home canning and related products,
primarily under the Ball(R), Kerr(R) and Bernardin(R) brands. Our materials
based group is the country's largest producer of zinc strip and is a plastics
manufacturer.
During 2001, we repositioned our growth strategy to focus on consumer
products. Alltrista Consumer Products manufactures, markets and distributes a
broad line of home food preservation and preparation products that includes
recognized brand name home canning jars, jar closures and other accessories
(including fruit pectin, Fruit-Fresh(R) brand fruit protector, pickle mixes and
tomato mixes). As of April 24, 2002, through the acquisition of Tilia
International, Inc. and its subsidiaries ("Tilia"), our consumer products group
markets and distributes the FoodSaver(R) vacuum packaging system. Vacuum
packaging is the process of removing air from a container to create a vacuum,
and then sealing the container so that air cannot re-enter.
Our materials based group is comprised of three business segments:
metals, injection molded plastics, and other. Our metals business is the sole
source supplier of copper plated zinc penny blanks to both the United States
Mint and the Royal Canadian Mint. In addition, we manufacture a line of
industrial zinc items used in the plumbing, automotive, electrical component and
European architectural markets, and the Lifejacket(R) anti-corrosion system. Our
plastic injection molding business manufactureS precision custom components for
major companies in the healthcare and consumer products industries including
CIBA Vision Corporation, Johnson & Johnson, Meridian Diagnostics, Inc., The
Scotts Company and Winchester Ammunition. The other segment includes the
manufacturing of non-injection molded plastic parts and other immaterial
business activities.
RECENT DEVELOPMENTS
Diamond Brands Acquisition. On November 27, 2002, we entered into an
Asset Purchase Agreement to purchase the business assets and liabilities of
Diamond Brands Operating Corp. and its affiliates ("Diamond Brands"), a leading
manufacturer and marketer of niche consumer products for domestic use including
matches, toothpicks, disposable plastic cutlery, straws, clothespins and wooden
crafts sold primarily under the Diamond Brands(R) and Forster(R) trademarks. The
acquisition of Diamond BraNds has been approved in the United States Bankruptcy
Court for the District of Delaware as the exclusive plan to be voted on by the
creditors.
Our acquisition of Diamond Brands is subject to final confirmation by
the United States Bankruptcy Court for the district of Delaware,
Hart-Scott-Rodino approval, and other customary closing conditions. Although we
cannot assure you that any and all these conditions will be satisfied, at this
time, we believe that we will complete the acquisition during the first quarter
of 2003.
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We intend to finance our acquisition of Diamond Brands at closing with
the combination of available cash and borrowings under our credit facility. The
purchase price for the sale and transfer of the assets shall consist of: (a) an
aggregate amount equal to the sum of the following: (i) $12,950,000 in cash,
(ii) the balance, as of the closing, of the principal amount due under a DIP
loan agreement, taking into account all payments made in respect of such
principal amount by the debtors through the closing, plus (b) at Jarden's
election, within six months after the closing (i) either $6 million in cash
payable by wire transfer in immediately available funds or (ii) shares of Jarden
common stock with an aggregate fair market value of $6 million as of the date of
delivery; and (c) the assumption of certain liabilities.
Exchange Offer. On December 4, 2002, we completed an offer to the
holders of our 9 3/4% senior subordinated notes subject To Rule 144A of the
Securities Act of 1933 to exchange those notes for our 9 3/4% senior
subordinated notes which are registered under the Securities Act of 1933, as
amended, and are substantially similar to the old notes except that the
mandatory redemption provisions and the transfer restrictions applicable to the
old notes are not applicable to the new notes. Substantially all of the
$150,000,000 aggregate principal amount of the old notes were exchanged for the
new notes.
CONSUMER PRODUCTS GROUP
The consumer products group is comprised of two segments: vacuum
packaging and domestic consumables.
Our domestic consumables segment manufactures, markets and distributes
a line of home food preservation products to serve value, mid-tier and premium
oriented customers, which products include home canning jars, jar closures, home
canning tools, and other accessories. These products are marketed under the
well-known Ball(R), Bernardin(R), Golden Harvest(R), and Kerr(R) brand names. We
also market and distribute related food products, including fruit pectin,
Fruit-Fresh(R) brand fruit protector, pickle mixes, tomato mixes and all-in-one
canning kits, including a jam pectin kit and jelly and salsa kits. In addition,
we market a line of housewares under the Golden Harvest(R) brand, including
tumblers, beverage tappers and other glassware.
We also provide patented vacuum packaging systems for household use
marketed under the FoodSaver(R) brand. Our seven models of compact, patented
counter-top FoodSaver(R) appliances incorporate a vacuum pump and bag sealer to
keep foods fresh and are sold at prices ranging from approximately $100 to
almost $300. We market our FoodSaver(R) appliances in tandem with our patented
FoodSaver(R) bags and rolls and complementary accessories, including canisters,
containers, lids, jar sealers and bottle stoppers.
Customers
Our customers are a diverse group of wholesalers and retailers in the
United States and Canada. Our principal customers include grocery stores, mass
merchants, warehouse clubs, and hardware stores, but we also sell through
sporting goods and outdoor stores and specialty retailers. We have been
Wal-Mart's category manager for the home canning segment since 1998. In this
role, we are responsible for the home canning section within the store,
including inventory management, the introduction of new items, and the creation
of various reports to track inventory, sales, and margins. In addition to these
channels of distribution, vacuum packaging
9
products are sold directly to individual consumers through direct-to-consumer
channels. Our direct-to-consumer sales have primarily been made through
infomercials and catalogs.
Sales and Marketing
Our consumer products sales are made in the United States and Canada
through food brokers and manufacturer representative organizations as well as
through our internal sales force and house accounts. We employ regional sales
managers located in key geographic areas who oversee the sales and retail
activities of food brokerage firms and independent manufacturer representatives.
Distribution and Fulfillment
We utilize company-operated and independent warehouses located in
various regions of the United States and Canada to distribute our products. The
largest of these warehouses is located in Muncie, Indiana and is operated by an
outsourced provider, which utilizes highly automated packaging equipment
allowing us to maintain our efficient and effective logistics and freight
management processes. We also work with an outsourced provider for the delivery
of our products in order to ensure that as many shipments as possible are
processed as full truckloads, saving significant freight costs.
Manufacturing
We manufacture the metal closures for our home canning jars at our
Muncie, Indiana facility. Lithographed tin plated steel sheet is cut and formed
to produce the lids and bands. Liquid plastisol, which we formulate, is applied
to lids, forming an airtight seal, which is necessary for safe and effective
home canning. Finished products are packaged for integration with glass jars or
sold in multi-packs as replacement lids.
Vacuum packaging products are sourced through a network of independent
manufacturers. Appliances are currently sourced through three facilities in
China; bags and rolls are currently sourced through suppliers in Korea and the
United States; and accessories are sourced from Taiwan, China and the United
States. Our own research and development department designs and engineers
products in the United States and sets strict engineering specifications for the
third-party manufacturers. We maintain ownership over all necessary production
molds.
Intellectual Property
Management believes that none of our active trademarks or patents is
essential to the successful operation of our business as a whole. However, one
or more trademarks or patents may be material in relation to individual products
or product lines such as our property rights to use the Ball(R), FoodSaver(R),
Fruit-Fresh(R), Golden Harvest(R), and Kerr(R) brand names and The Bernardin(R)
trade name in connection with certain goods to be sold, including home food
preservation supplies, kitchen housewares and packaged foods for human
consumption.
We hold patents throughout many primary worldwide markets on both the
design of the FoodSaver(R) appliance itself as well as on many of its
components. Our patent on the
10
FoodSaver(R) vacuum seal appliance expires in 2009, and our patent on
FoodSaver(R) bags expires in 2005. The key elements of the bag are a unique
waffle pattern that facilitates air removal, an oxygen barrier layer that
prevents air from entering the bag and a heat resistant outer layer to allow
easy sealing without burn-through. In addition, we have registered the VacLoc,
SaverMate, VacuTop and VacuSave names with the U.S. Patent and Trademark Office
and in several countries throughout the world. In addition, we have developed a
proprietary two-piece closure system incorporating a plastisol sealant that
differentiates our jar lids from our competitors' lids. We have pending patent
applications for new technology for bags and vacuum packaging systems that we
recently acquired.
Pursuant to the terms of the 1993 distribution agreement with Ball
Corporation, we were granted a license to use the Ball(R) brand name for our
consumer products. In the event of a change of control of Jarden which has not
received the approval of a majority of our board of directors or causes us to be
controlled or majority owned by a competitor of Ball, Ball has the option to
terminate our license to use the Ball(R) brand name. Pursuant to the terms of an
agreement with Kerr Group, Inc., we have a perpetual exclusive, worldwide
license to use the Kerr(R) brand name in our consumer products division.
However, in the event of a change of control of Jarden which has not received
the approval of a majority of our board of directors, Kerr has the option to
terminate our license to use the Kerr(R) brand name.
Raw Materials
Most of our glass canning jars are supplied under an agreement with
Anchor Glass Container Corporation. Such glass materials are also available from
a variety of other sources at competitive prices. The tin plate raw material
used in the manufacture of our home canning jar lids and closures is supplied by
multiple vendors and is currently available from a variety of sources at
competitive prices. Historically, the raw materials and components that are
necessary for the manufacture of our products have been available in the
quantities that we require.
Competition
We are the leading provider of home canning products and related
accessories and our brands represent a significant portion of the sales in this
niche market. In addition to the competitors in our niche market, we compete
with companies who specialize in other food preservation mediums such as
freezing and dehydration.
Our vacuum packaging appliances compete with marketers of
"conventional" food storage solutions, such as plastic bags and containers. In
addition, our competitors include manufacturers of sealing appliances that
heat-seal bags, but, we believe, do not create a vacuum seal comparable to ours.
There are also several companies that manufacture industrial and commercial
vacuum packaging products, but we do not believe that these manufacturers have
attempted to enter the household marketplace.
MATERIALS BASED GROUP
Our materials based group is currently comprised of three business
segments: metals, injection molded plastics, and other.
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METALS
We believe our zinc strip business is the largest producer of zinc
strip and fabricated products in the United States. We are the sole source
supplier of copper plated zinc penny blanks to both the United States Mint and
the Royal Canadian Mint and are currently exploring opportunities with several
other countries. In addition, we manufacture a line of industrial zinc items
used in the plumbing, automotive, electrical component and European
architectural markets, and the Lifejacket(R) anti-corrosion system. Our
anticorrosion zinc Lifejacket(R) is gaining recognition as a cost-effective
solution to arrest the corrosion of the reinforcement steel within poured
concrete structures. We are affected by fluctuations in penny blank requirements
of the United States Department of the Treasury and the Federal Reserve System.
Although the future use of the penny as legal tender has been debated in recent
years, management believes that the zinc based coinage will remain an important
part of the currency system for the foreseeable future.
Sales and Marketing
Our sales and marketing staff consists of individuals with considerable
technical background in the field of metallurgy. These individuals focus on
leveraging our core capabilities in zinc metallurgy and electrochemistry to
exploit new market opportunities. The sales and marketing staff works closely
with our engineering and technical services group to deliver products to the
customer. We maintain a website which contains technical information regarding
the advantageous physical properties of zinc versus other metals.
Manufacturing
In our Greenville, Tennessee facility, we manufacture alloys of zinc
strip and fabricated zinc products in a number of configurations for our
customers. We have five lines used to slit the coils into widths specified by
customers. Many customers require less than the full master coil diameters, so
the large coils are broken down into the requested diameters at the time they
are slit. We also produce coin blanks stamped from slit coils using one of five
high-speed presses. The stamped blanks are then rimmed and put into one of three
electroplating lines where the copper coating is applied.
Raw Materials
We purchase special high-grade zinc ingot and a variety of metals,
including copper, lead, titanium, magnesium, manganese and other alloys, to
produce the zinc alloys we use in our various applications. These alloys have
been developed by our technical staff to meet the specific physical and chemical
characteristics of the finished product applications. We purchase zinc ingot
based on market prices quoted on the London Metals Exchange (month-end average
price) from a variety of suppliers. Certain customers, including the United
States Mint, provide their own purchased zinc that is utilized to manufacture
product at a toll conversion price. We purchase copper for both alloying and
plating purposes based on market prices quoted on the New York Commodities and
Metals Exchange. As with zinc ingot, the United States Mint supplies the
required copper for one-cent coin blanks. We also purchase a variety of
chemicals for production and waste treatment, primarily for use in copper
plating. Prices for chemicals are
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negotiated with suppliers based on market supply and demand conditions and
volume purchase levels.
INJECTION MOLDED PLASTICS
We manufacture precision custom injection molded components for major
companies in the healthcare and consumer products industries. We also own
Yorker(R) Closures, a proprietary product line of plastic closures. Products for
the healthcare industry include items such as intravenous harness components and
surgical devices. Products for manufacturers of consumer goods primarily include
packaging and sport shooting ammunition components.
Customers
We supply shotgun shell components to Winchester Ammunition and
various healthcare products (such as contact lens cases) to CIBA Vision
Corporation, Ethicon, Inc., Johnson & Johnson, CB Fleet Company, Inc., and
Meridian Diagnostics, Inc. and consumer products for The Scotts Company, among
others.
Sales and Marketing
We concentrate our marketing efforts in those markets that require high
levels of precision, quality, and engineering expertise. There is potential for
continued growth in all product lines, especially in the healthcare market,
where our quality, service and "clean room" molding operations are critical
competitive factors.
Manufacturing
We manufacture at three facilities located in Greenville, South
Carolina; Reedsville, Pennsylvania; and Springfield, Missouri. The
injection-molding process involves converting plastic resin pellets to a fluid
state through elevated temperature and pressure, at which point the resin is
injected into a mold where it is then formed into a finished part. Molded parts
are usually small, intricate components that are produced using multi-cavity
tooling. Post-molding operations employ robotics and automation for assembly and
packaging.
Raw Materials
We purchase resin from regular commercial sources of supply and, in
most cases, multiple sources. The supply and demand for plastic resins are
subject to cyclical and other market factors.
Competition
The market for injection molded plastics is highly competitive. We
concentrate our marketing efforts in those markets that require high levels of
precision, quality, engineering expertise and cleanliness. We have
differentiated ourselves from our competitors by developing long-lasting
relationships with a number of specialty tooling manufacturers and by possessing
strong design capabilities. We believe that the quality and cleanliness of our
facilities provides another competitive advantage for us. As a result, we
believe that we will continue to capture
13
new injection molding programs as they come to market, as well as benefit from
continued outsourcing trends among original equipment manufacturers.
OTHER
Effective November 26, 2001, we sold our underperforming thermoformed
plastics operations consisting of the assets of our Triangle, TriEnda and
Synergy World divisions (the "TPD Assets") to Wilbert, Inc. for $21.0 million in
cash, a $1.9 million noninterest-bearing one-year note, and the assumption of
certain identified liabilities. We recorded a pre-tax loss of $121.1 million in
2001 related to the sale.
Effective November 1, 2001, we sold our majority interest in Microlin,
LLC, a developer of proprietary battery and fluid delivery technology, for
$1,000 in cash plus contingent consideration based upon future performance
through December 31, 2012 and the cancellation of future funding requirements.
We recorded a pre-tax loss of $1.4 million in 2001 related to the sale.
Currently, our other business primarily manufactures thermoformed
plastic white goods for a variety of customers in our Fort Smith, Arkansas
facility. We also manufacture and sell extruded plastic sheet and roll stock
products in smooth, textured and laminated finishes for a variety of customers.
Additionally, we produce plastic tables for original equipment manufacturers in
our Fort Smith plant and have a proprietary line of tables selling under the
Vision(TM) brand that are primarily sold to the hospitality and institutional
markets. Our customers are primarily other equipment manufacturers.
Our products are produced through a thermoforming process.
Thermoforming is an operation in which plastic sheet is converted into a formed
product through single- or twin-sheet vacuum or pressure formed in conjunction
with the application of heat. After the product is formed, the process of
removing the excess material, or trimming, is generally performed by automated
equipment programmed to execute the appropriate steps to produce the finished
part to the customer's specifications. We purchase resin directly for use in the
manufacture of extruded sheet and also purchase plastic sheet from third-party
suppliers in those instances where we are unable to provide for our needs
internally. These raw materials are obtained from regular commercial sources of
supply and, in most cases, multiple sources. The supply and demand for plastic
resins are subject to cyclical and other market factors. Certain of our
customers purchase the resin on our behalf, thereby providing us protection from
price fluctuations.
GOVERNMENT CONTRACTS
We enter into contracts with the United States Government which contain
termination provisions customary for government contracts. See "Metals" under
the materials based group discussion above. The United States Government retains
the right to terminate such contracts at its convenience. However, if the
contract is terminated, we are entitled to be reimbursed for allowable costs and
profits to the date of termination relating to authorized work performed to such
date. The United States Government contracts are also subject to reduction or
modification in the event of changes in government requirements or budgetary
constraints. Since entering into a contract with us in 1981, the United States
Government has not terminated the penny blank supply arrangement.
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ENVIRONMENTAL MATTERS
Our operations are subject to Federal, state and local environmental
and health and safety laws and regulations, including those that impose
workplace standards and regulate the discharge of pollutants into the
environment and establish standards for the handling, generation, emission,
release, discharge, treatment, storage and disposal of materials and substances
including solid and hazardous wastes. We believe that we are in material
compliance with such laws and regulations. Further, the cost of maintaining
compliance has not, and we believe, in the future, will not, have a material
adverse effect on our business, results of operations or financial condition.
Due to the nature of our operations and the frequently changing nature of
environmental compliance standards and technology, we cannot predict with any
certainty that future material capital or operating expenditures will not be
required in order to comply with applicable environmental laws and regulations.
In addition to operational standards, environmental laws also impose
obligations on various entities to clean up contaminated properties or to pay
for the cost of such remediation, often upon parties that did not actually cause
the contamination. We have attempted to limit our exposure to such liabilities
through contractual indemnities and other mechanisms. We do not believe that any
of our existing remediation obligations, including at third-party sites where we
have been named a potentially responsible party, will have a material adverse
effect upon our business, results of operations or financial condition.
EMPLOYEES
As of September 30, 2002, we employed approximately 950 people.
Approximately 215 union workers are covered by two collective bargaining
agreements at our metals and domestic consumables manufacturing facilities.
These agreements expire at the domestic consumables facility (Muncie, Indiana)
on October 15, 2006, and at the metals facility (Greeneville, Tennessee) on
October 4, 2003.
We have not experienced a work stoppage during the past five years.
Management believes that its relationships with our employees and collective
bargaining unions are satisfactory.
Our principal executive offices are located at 555 Theodore Fremd
Avenue, Rye, New York, 10580.
15
RISK FACTORS
Investing in our securities involves risks, including the risks
described in this prospectus, in any prospectus supplement and in the other
documents that are incorporated herein by reference. You should carefully
consider the risks factors together with all of the other information and data
included in this prospectus, any prospectus supplement and the documents that
are incorporated herein by reference before you decide to acquire any
securities. If any of the following risks actually occur, our business,
financial condition or results of operation may suffer.
RISKS RELATING TO JARDEN
REDUCTIONS, CANCELLATIONS, OR DELAYS IN CUSTOMER PURCHASES WOULD ADVERSELY
AFFECT OUR PROFITABILITY.
Customers in our consumer products group, and many customers in our
materials based group, generally do not enter into long-term contracts or
commitments with us. As a result, these customers may cancel their orders,
change purchase quantities from forecast volumes, or delay purchases for a
number of reasons beyond our control. Significant or numerous cancellations,
reductions, or delays in purchases by customers could have a material adverse
effect on our business, results of operations and financial condition. In
addition, because many of our costs are fixed, a reduction in customer demand
could have an adverse affect on our gross profit margins and operating income.
Sales to one customer in our consumer products group, Wal-Mart Stores,
Inc. and its affiliates, accounted for approximately 8% of our 2001 consolidated
net sales and approximately 17% of our 2001 consolidated net sales on a pro
forma basis. In addition, sales to one customer in our materials based group
accounted for approximately 8% of our 2001 consolidated net sales and
approximately 6% of our 2001 consolidated net sales on a pro forma basis. A
significant reduction in purchases from either of these customers could have a
material adverse effect on our business, results of operations and financial
condition.
WE MAY BE ADVERSELY AFFECTED BY THE TREND TOWARDS RETAIL TRADE CONSOLIDATION.
With the growing trend towards retail trade consolidation, we are
increasingly dependent upon key retailers whose bargaining strength is growing.
Our consumer products businesses may be negatively affected by changes in the
policies of our retailer customers, such as inventory destocking, limitations on
access to shelf space, price demands and other conditions.
SALES OF SOME OF OUR PRODUCTS ARE SEASONAL AND WEATHER RELATED.
Sales of certain of our products, particularly our consumer products,
are seasonal. Sales of our home canning products generally reflect the pattern
of the growing season, and sales of our FoodSaver(R) products generally are
strongest in the fourth quarter preceding the holiday season. Sales of these
products may be negatively impacted by unfavorable weather conditions and other
market trends. Periods of drought, for example, may adversely affect the supply
and price of fruit, vegetables, and other foods available for home canning.
Sales of our consumer products may also be adversely affected by the trend
toward decreasing prices and increasing
16
quality of purchased preserved food products. Either or both of these factors
could have a material adverse effect on our business, results of operations and
financial condition.
WE DEPEND ON SUPPLIERS IN ASIA.
The vast majority of our FoodSaver(R) products are manufactured by
third party suppliers in China and Korea. Any adverse change in, among other
things, any of the following could have a material adverse effect on our
business, results of operations and financial condition:
o our relationship with these suppliers;
o the financial condition of these suppliers;
o our ability to import outsourced products; or
o these suppliers' ability to manufacture and deliver outsourced
products on a timely basis.
We cannot assure you that we could quickly or effectively replace any
of our suppliers if the need arose, and we cannot assure you that we could
retrieve tooling and molds possessed by any of our suppliers. Our dependence on
these few suppliers could also adversely affect our ability to react quickly and
effectively to changes in the market for our products. In addition,
international manufacturing is subject to significant risks, including, among
other things:
o labor unrest;
o political instability;
o restrictions on transfer of funds;
o domestic and international customs and tariffs;
o unexpected changes in regulatory environments; and
o potentially adverse tax consequences.
Labor in China has historically been readily available at relatively
low cost as compared to labor costs applicable in other nations. China has
experienced rapid social, political and economic change in recent years. We
cannot assure you that labor will continue to be available to us in China at
costs consistent with historical levels. A substantial increase in labor costs
in China could have a material adverse effect on our business, results of
operations and financial condition. Although China currently enjoys "most
favored nation" trading status with the United States, the U.S. government has
in the past proposed to revoke such status and to impose higher tariffs on
products imported from China. We cannot assure you that our business will not be
affected by the aforementioned risks, each of which could have a material
adverse effect on our business, results of operations and financial condition.
COMPETITION IN OUR INDUSTRIES MAY HINDER OUR ABILITY TO EXECUTE OUR BUSINESS
STRATEGY, ACHIEVE PROFITABILITY, OR MAINTAIN RELATIONSHIPS WITH EXISTING
CUSTOMERS.
17
We operate in highly competitive industries. We compete against
numerous other domestic and foreign companies, many of which are more
established in their industries and have substantially greater revenue or
resources than we do. We also face competition from the manufacturing operations
of our current and potential customers in our materials based group. A shift
away from outsourcing on behalf of our current or potential customers could have
a material adverse effect on our business, results of operations and financial
condition. Competition could cause price reductions, reduced profits or losses,
or loss of market share, any of which could have a material adverse effect on
our business.
To compete effectively in the future in the consumer products industry,
among other things, we must:
o maintain strict quality standards;
o develop new products that appeal to consumers; and
o deliver products on a reliable basis at competitive prices.
To compete effectively in the future in the materials based industry,
among other things, we must:
o provide technologically advanced manufacturing services;
o maintain strict quality standards;
o respond flexibly and rapidly to customers' design and schedule
changes; and
o deliver products on a reliable basis at competitive prices.
Our inability to do any of these things could have a material adverse
effect on our business, results of operations and financial condition.
IF WE FAIL TO DEVELOP NEW OR EXPAND EXISTING CUSTOMER RELATIONSHIPS, OUR ABILITY
TO GROW OUR BUSINESS WILL BE IMPAIRED.
Growth in our consumer products and materials based groups depends to a
significant degree upon our ability to develop new customer relationships and to
expand existing relationships with current customers. We cannot guarantee that
new customers will be found, that any such new relationships will be successful
when they are in place, or that business with current customers will increase.
Failure to develop and expand such relationships could have a material adverse
effect on our business, results of operations and financial condition.
WE CANNOT BE CERTAIN THAT OUR PRODUCT INNOVATIONS AND MARKETING SUCCESSES WILL
CONTINUE.
We believe that our future success will depend, in part, upon our
ability to continue to introduce innovative designs in our existing products and
to develop, manufacture and market new products. We cannot assure you that we
will be successful in the introduction, marketing
18
and manufacturing of any new products or product innovations, or develop and
introduce in a timely manner innovations to our existing products which satisfy
customer needs or achieve market acceptance. Our failure to develop new products
and introduce them successfully and in a timely manner would harm our ability to
grow our business and could have a material adverse effect on our business,
results of operations and financial condition.
WE MAY EXPERIENCE DIFFICULTY IN INTEGRATING ACQUIRED BUSINESSES, WHICH MAY
INTERRUPT OUR BUSINESS OPERATIONS.
We intend to grow through the acquisition of additional companies,
including the proposed acquisition of the business assets of Diamond Brands. We
expect to face competition for acquisition candidates, which may limit the
number of opportunities and may lead to higher acquisition prices. There can be
no assurance that we will be able to identify, acquire, or manage profitably
additional businesses or to integrate successfully any acquired businesses into
our existing business without substantial costs, delays or other operational or
financial difficulties. Further, acquisitions involve a number of special risks,
including failure of the acquired business to achieve expected results,
diversion of management's attention, failure to retain key personnel of the
acquired business and risks associated with unanticipated events or liabilities,
some or all of which could have a material adverse effect on our business,
results of operations and financial condition.
OUR OPERATIONS ARE SUBJECT TO A NUMBER OF FEDERAL, STATE AND LOCAL ENVIRONMENTAL
REGULATIONS.
Our operations are subject to Federal, state and local environmental
and health and safety laws and regulations including those that impose workplace
standards and regulate the discharge of pollutants into the environment and
establish standards for the handling, generation, emission, release, discharge,
treatment, storage and disposal of materials and substances including solid and
hazardous wastes. We believe that we are in material compliance with such laws
and regulations and that the cost of maintaining compliance will not have a
material adverse effect on our business, results of operations or financial
condition. While we do not anticipate having to make, and historically have not
had to make, significant capital expenditures in order to comply with applicable
environmental laws and regulations, due to the nature of our operations and the
frequently changing nature of environmental compliance standards and technology,
we cannot predict with any certainty that future material capital expenditures
will not be required.
WE MAY BE ADVERSELY AFFECTED BY REMEDIATION OBLIGATIONS MANDATED BY APPLICABLE
ENVIRONMENTAL LAWS.
In addition to operational standards, environmental laws also impose
obligations on various entities to clean up contaminated properties or to pay
for the cost of such remediation, often upon parties that did not actually cause
the contamination. Accordingly, we may become liable, either contractually or by
operation of law, for remediation costs even if the contaminated property is not
presently owned or operated by us, is a landfill or other location where we have
disposed wastes, or if the contamination was caused by third parties during or
prior to our ownership or operation of the property. Given the nature of the
past industrial operations conducted by us and others at these properties, there
can be no assurance that all potential instances of soil or groundwater
contamination have been identified, even for those properties
19
where an environmental site assessment has been conducted. We do not believe
that any of our existing remediation obligations, including at third-party sites
where we have been named a potentially responsible party, will require material
capital or operating expenditures or will otherwise have a material adverse
effect upon our business, results of operations or financial condition. However,
future events, such as changes in existing laws or policies or their
enforcement, or the discovery of currently unknown contamination, may give rise
to additional remediation liabilities that may be material.
WE DEPEND UPON KEY PERSONNEL.
We are highly dependent on the continuing efforts of our executive
officers, including Martin E. Franklin, our Chairman and Chief Executive
Officer, and Ian G.H. Ashken, our Vice Chairman and Chief Financial Officer, and
we likely will depend on the senior management of any significant business we
acquire in the future. Our business, results of operations and financial
condition could be materially adversely affected by the loss of any of these
persons and the inability to attract and retain qualified replacements.
WE ENTER INTO CONTRACTS WITH THE UNITED STATES GOVERNMENT AND OTHER GOVERNMENTS.
We have entered into a contract with the United States government to
supply penny blanks to the United States Mint. We have also entered into a
contract with the Canadian government to supply penny blanks to the Royal
Canadian Mint. These contracts contain termination provisions customary for
government contracts. The United States government and Canadian government
retain the right to terminate these contracts at their convenience. These
contracts are also subject to reduction or modification in the event of changes
in government requirements or budgetary constraints.
Our largest metals customer is the United States Mint, which comprised
approximately 8% of our 2001 consolidated net sales (approximately 6% on a pro
forma basis). The United States Mint announced in the fourth quarter of 2001
that it was implementing an inventory reduction program for all coinage. In
addition, several times in recent years, proposed legislation has been
introduced which, if passed, could reduce or eliminate the circulation of the
penny. If production, use or demand for the U.S. penny is reduced, it could have
a material adverse effect on our business, results of operations and financial
condition.
OUR OPERATING RESULTS CAN BE ADVERSELY AFFECTED BY CHANGES IN THE COST OR
AVAILABILITY OF RAW MATERIALS.
Pricing and availability of raw materials for use in our businesses can
be volatile due to numerous factors beyond our control, including general,
domestic and international economic conditions, labor costs, production levels,
competition, import duties and tariffs and currency exchange rates. This
volatility can significantly affect the availability and cost of raw materials
for us, and may, therefore, have a material adverse effect on our business,
results of operations and financial condition.
During periods of rising prices of raw materials, there can be no
assurance that we will be able to pass any portion of such increases on to
customers. Conversely, when raw material prices decline, customer demands for
lower prices could result in lower sale prices and, to the extent we
20
have existing inventory, lower margins. As a result, fluctuations in raw
material prices could have a material adverse effect on our business, results of
operations and financial condition.
Some of the products we manufacture require particular types of glass,
plastic, metal or other materials. Supply shortages for a particular type of
material can delay production or cause increases in the cost of manufacturing
our products. This could have a material adverse effect on our business, results
of operations and financial condition.
OUR BUSINESS COULD BE ADVERSELY AFFECTED BECAUSE OF RISKS WHICH ARE PARTICULAR
TO INTERNATIONAL OPERATIONS.
On a pro forma basis, approximately 10.8% of Jarden's net sales in 2001
were derived from sales outside of the United States. In addition, we anticipate
that international sales will be a growth area for our consumer products
business. International sales (and the international operations of our
customers) are subject to inherent risks which could adversely affect us,
including, among other things:
o fluctuations in the value of currencies;
o unexpected changes in and the burdens and costs of compliance
with a variety of foreign laws;
o political and economic instability;
o increases in duties and taxation; and
o reversal of the current policies (including favorable tax and
lending policies) encouraging foreign investment or foreign trade
by our host countries.
OUR PERFORMANCE CAN FLUCTUATE WITH THE FINANCIAL CONDITION OF THE RETAIL
INDUSTRY.
We sell our consumer products to retailers, including food, hardware,
catalog and mass merchants, in the United States and Canada. A significant
deterioration in the financial condition of our major customers could have a
material adverse effect on our sales and profitability. We continually monitor
and evaluate the credit status of our customers and attempt to adjust sales
terms as appropriate. Despite these efforts, a bankruptcy filing by a key
customer could have a material adverse effect on our business, results of
operations and financial condition.
In addition, as a result of the desire of retailers to more closely
manage inventory levels, there is a growing trend among retailers to make
purchases on a "just-in-time" basis. This requires us to shorten our lead time
for production in certain cases and more closely anticipate demand, which could
in the future require the carrying of additional inventories.
CLAIMS MADE AGAINST US BASED ON PRODUCT LIABILITY COULD HAVE A MATERIAL ADVERSE
EFFECT ON OUR BUSINESS.
As a producer and marketer of consumer products, we are subject to the
risk of claims for
21
product liability. We maintain product liability insurance, but there is a risk
that our coverage will not be sufficient to insure against all claims which may
be brought against us, or that we will not be able to maintain that coverage or
obtain additional insurance covering existing or new products. If a product
liability claim exceeding our insurance coverage were to be successfully
asserted against us, it could have a material adverse effect on our business,
results of operations and financial condition.
WE DEPEND ON OUR PATENTS AND PROPRIETARY RIGHTS.
Our success with our proprietary products depends, in part, on our
ability to protect our current and future technologies and products and to
defend our intellectual property rights. If we fail to adequately protect our
intellectual property rights, competitors may manufacture and market products
similar to ours. We cannot be sure that we will receive patents for any of our
patent applications or that any existing or future patents that we receive or
license will provide competitive advantages for our products. We also cannot be
sure that competitors will not challenge, invalidate or avoid the application of
any existing or future patents that we receive or license. In addition, patent
rights may not prevent our competitors from developing, using or selling
products that are similar or functionally equivalent to our products.
Furthermore, the patents we maintain on the bags used for vacuum sealing expire
in 2005 and the patents we maintain on our home vacuum packaging systems expire
in 2009. We are currently applying for patents on new bags and vacuum packaging
systems that we recently acquired.
WE DEPEND ON A SINGLE MANUFACTURING FACILITY FOR CERTAIN ESSENTIAL PRODUCTS.
Certain of our products, including some using specially designed
machines and proprietary cutting technology, are manufactured at a sole
company-owned manufacturing facility. These facilities are subject to the normal
hazards that could result in material damage to such facilities. Damage to any
of these facilities, or prolonged interruption in the operations of any of these
facilities for repairs or other reasons, could have a material adverse effect on
our business, results of operations and financial condition.
CERTAIN OF OUR EMPLOYEES ARE REPRESENTED BY LABOR UNIONS.
Approximately 215 of our employees are covered by collective bargaining
agreements. These agreements expire at our domestic consumables facility
(Muncie, Indiana) on October 15, 2006 and at our metals facility (Greeneville,
Tennessee) on October 4, 2003. While we have not experienced a work stoppage,
slowdown or strike during the past five years and management believes that its
relationships with our collective bargaining units are good, no assurance can be
made that we will not experience a work stoppage, slowdown or strike in the
future. A work stoppage, slowdown or strike by our employees, or the employees
of our suppliers or customers, could have a material adverse effect on our
business, results of operations and financial condition.
RISKS RELATED TO OUR COMMON STOCK
DELAWARE LAW AND OUR RIGHTS PLAN MAY LIMIT POSSIBLE TAKEOVERS.
Our certificate of incorporation makes us subject to the anti-takeover
provisions of
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Section 203 of the Delaware General Corporation Law. In general, Section 203
prohibits publicly-held Delaware corporations to which it applies from engaging
in a "business combination" with an "interested stockholder" for a period of
three years after the date of the transaction in which the person became an
interested stockholder, unless the business combination is approved in a
prescribed manner. This provision could discourage others from bidding for our
shares and could, as a result, reduce the likelihood of an increase in our stock
price that would otherwise occur if a bidder sought to buy our stock.
We have adopted a rights plan that provides that shares of our common
stock have associated preferred stock purchase rights. These rights become
exercisable and detachable from the associated common stock only on the tenth
day following a public announcement that a person or group has acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of our common stock or on the tenth business day (or such
later date as our board of directors will determine) following the commencement
of a tender offer or exchange offer that would result in a person or group
holding 15% or more of the outstanding shares of our common stock. The rights
entitle our stockholders, other than the person or entity that has acquired or
made an exchange or tender offer for 15% or more of our outstanding common
stock, to purchase shares of our series A junior participating preferred stock
or other capital stock and, in certain circumstances, would allow our
stockholders to acquire capital stock in an entity that acquires our company.
The exercise of these rights would make the acquisition of Jarden by a third
party more expensive to that party and has the effect of discouraging third
parties from acquiring our company without the approval of our board of
directors, which has the power to redeem these rights and prevent their
exercise. The preferred stock purchase rights are not presently exercisable and
will expire at the close of business on March 22, 2003, unless earlier redeemed
by us.
THE MARKET PRICE FOR OUR COMMON STOCK IS VOLATILE.
The market price for our common stock may be highly volatile. We
believe that a variety of factors, including announcements by us or our
competitors, quarterly variations in financial results, trading volume, general
market trends and other factors, could use the market price of our common stock
to fluctuate substantially. Additionally, the market in general, and our common
stock in particular, may be subject to increased volatility due to general
economic conditions and the terrorist attacks in New York and Washington, D.C.
and any resulting conflicts.
WE MAY ISSUE A SUBSTANTIAL AMOUNT OF OUR COMMON STOCK IN CONNECTION WITH FUTURE
ACQUISITIONS AND THE SALE OF THOSE SHARES COULD ADVERSELY AFFECT OUR STOCK
PRICE.
As part of our growth strategy, we anticipate issuing additional shares
of our common stock, preferred stock, and warrants. We may file other shelf
registration statements with the Securities and Exchange Commission that we may
use to sell shares of our common stock preferred stock, and warrants from time
to time in connection with acquisitions. To the extent that we are able to grow
through acquisitions for stock or warrants to purchase our stock, the number of
outstanding shares of common stock and/or preferred stock that will be eligible
for sale in the future is likely to increase substantially. Persons receiving
warrants or shares of our common or preferred stock in connection with these
acquisitions may be more likely to sell large quantities of their warrants and
stock which may influence the price of our common stock. In
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addition, the potential issuance of additional shares in connection with
anticipated acquisitions could lessen demand for our common stock and result in
a lower price than would otherwise be obtained.
OUR STOCK PRICE MAY BE ADVERSELY AFFECTED IF OUR STOCKHOLDERS SELL SUBSTANTIAL
AMOUNTS OF OUR COMMON STOCK, OR OUR PREFERRED STOCK OR WARRANTS CONVERTIBLE INTO
OUR COMMON STOCK, IN THE PUBLIC MARKET FOLLOWING THE OFFERING.
If our stockholders sell substantial amounts of our common stock, or
our preferred stock or warrants convertible into our common stock, in the public
market following this offering, the market price of our common stock could fall.
These sales might make it more difficult for us to sell equity or equity-related
securities in the future at a time and price that we deem appropriate and may
require us to issue greater amounts of our common stock to finance such
acquisition. Additional shares sold in this offering or to finance acquisitions
may dilute our earnings per share if the new operations' earnings are
disappointing.
SINCE WE HAVE BROAD DISCRETION IN HOW WE USE THE NET PROCEEDS FROM THIS
OFFERING, WE MAY USE SUCH PROCEEDS IN WAYS WITH WHICH YOU DISAGREE.
We have not allocated specific amounts of the net proceeds from this
offering to any specific purpose. While we expect to use a portion of the net
proceeds from this offering to pay down our credit facility, our credit facility
will permit us to re-borrow that money at later times. Accordingly, our
management will have significant flexibility in applying the net proceeds of
this offering. The failure of management to use such funds effectively could
have a material adverse effect on our business, financial condition and
operating results.
RISKS RELATING TO THE DEBT SECURITIES
OUR SIGNIFICANT INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH, AND
PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER THE DEBT SECURITIES.
We have a significant amount of indebtedness and will incur more debt
if we close the proposed acquisition of Diamond Brands and/or complete a debt
offering. Our significant indebtedness could:
o make it more difficult for us to satisfy our obligations with
respect to the debt securities;
o increase our vulnerability to general adverse economic and
industry conditions;
o require us to dedicate a substantial portion of our cash flow
from operations to payments on our indebtedness, thereby reducing
the availability of our cash flow to fund working capital,
capital expenditures, acquisitions and investments and other
general corporate purposes;
o limit our flexibility in planning for, or reacting to, changes in
our business and the markets in which we operate;
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o place us at a competitive disadvantage compared to our
competitors that have less debt; and
o limit, among other things, our ability to borrow additional
funds.
The following table sets forth our total debt, total stockholders'
equity, total capitalization and ratio of debt to total capitalization:
September 30, 2002
------------------
(Unaudited)
(Dollars in Thousands)
Total debt $217,290
Total stockholders' equity 69,789
--------------------------
Total capitalization $287,079
==========================
Ratio of debt to total 76%
capitalization
The terms of our senior credit facility, the indenture that will govern
the debt securities, and the indenture governing our 9 3/4% senior subordinated
notes due 2012 allow us to issue and incur additional debt upon satisfaction of
certain conditions. See "Description of Senior Indebtedness" for a description
of our senior credit facility. If new debt is added to current debt levels, the
related risks described above could increase.
YOUR RIGHT TO RECEIVE PAYMENTS ON THE DEBT SECURITIES IS JUNIOR TO OUR EXISTING
SENIOR INDEBTEDNESS AND POSSIBLY ALL OF OUR FUTURE BORROWINGS. FURTHER, THE
GUARANTEES OF THE DEBT SECURITIES ARE JUNIOR TO ALL OF THE GUARANTORS' EXISTING
SENIOR INDEBTEDNESS AND POSSIBLY TO ALL THEIR FUTURE BORROWINGS.
The debt securities and the guarantees rank behind all of our and the
guarantors' existing senior indebtedness and all of our and the guarantors'
future senior indebtedness. See "Description of Senior Indebtedness" for a
description of our senior credit facility. As of September 30, 2002, the debt
securities and the guarantees were subordinated to approximately $53 million of
senior debt. In addition, our senior credit facility permitted up to
approximately $46 million of additional borrowings, subject to compliance with
the covenants and conditions to borrowing under the senior credit facility,
which borrowings would be senior to the debt securities and the guarantees. We
will be permitted to borrow substantial additional indebtedness, including
senior debt, in the future.
As a result of this subordination, upon any distribution to our
creditors or the creditors of the guarantors in a bankruptcy, liquidation or
reorganization or similar proceedings relating to us or the guarantors or our or
the guarantors' property, the holders of our senior debt and the senior debt of
the guarantors will be entitled to be paid in full in cash before any payment
may be made with respect to the debt securities or the guarantees.
In addition, all payments on the debt securities and the guarantees
will be blocked in the
25
event of a payment default on senior debt and may be blocked for up to 179
consecutive days in the event of certain non-payment defaults on designated
senior debt.
In the event of a bankruptcy, liquidation or reorganization or similar
proceeding relating to us or the guarantors, the indenture relating to the debt
securities will require that amounts otherwise payable to holders of the debt
securities in a bankruptcy or similar proceeding be paid to holders of senior
debt instead until the holders of senior debt are paid in full. As a result,
holders of the debt securities may not receive all amounts owed to them and may
receive less, ratably, than holders of trade payables and other unsubordinated
indebtedness in any such proceeding.
SINCE THE DEBT SECURITIES ARE UNSECURED, YOUR RIGHT TO ENFORCE REMEDIES IS
LIMITED BY THE RIGHTS OF HOLDERS OF SECURED DEBT.
In addition to being contractually subordinated to all existing and
future senior indebtedness, our obligations under the debt securities will be
unsecured while obligations under our senior credit facility will be secured by
substantially all of our assets and those of our subsidiaries. If we become
insolvent or are liquidated, or if payment under the senior credit facility is
accelerated, the lenders under the senior credit facility are entitled to
exercise the remedies available to a secured lender under applicable law. These
lenders have a claim on all assets securing the senior credit facility before
the holders of unsecured debt, including the debt securities.
NOT ALL OF OUR SUBSIDIARIES WILL GUARANTEE OUR OBLIGATIONS UNDER THE DEBT
SECURITIES, AND THE ASSETS OF THE NON-GUARANTOR SUBSIDIARIES MAY NOT BE
AVAILABLE TO MAKE PAYMENTS ON THE DEBT SECURITIES.
Our present and future domestic restricted subsidiaries will guarantee
the debt securities. Payments on the debt securities are only required to be
made by us and the subsidiary guarantors. As a result, no payments are required
to be made from assets of subsidiaries that do not guarantee the debt
securities, unless those assets are transferred by dividend or otherwise to us
or a subsidiary guarantor. On a pro forma basis, as of and for the year ended
December 31, 2001, the aggregate total assets and net sales of our foreign
subsidiaries, which represent all of our non-guarantor subsidiaries, were $14.3
million and $15.3 million, respectively, or 4.6% and 3.6%, respectively, of our
total assets and net sales.
In the event of a bankruptcy, liquidation or reorganization of any of
the non-guarantor subsidiaries, holders of their liabilities, including their
trade creditors, will be entitled to payment of their claims from the assets of
those subsidiaries before any assets are made available for distribution to us.
As a result, the debt securities are effectively subordinated to all
indebtedness and other liabilities of the non-guarantor subsidiaries.
WE WILL REQUIRE A SIGNIFICANT AMOUNT OF CASH TO SERVICE OUR INDEBTEDNESS. OUR
ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR CONTROL.
Our ability to make payments on and to refinance our indebtedness,
including the debt securities and amounts borrowed under our senior credit
facility, and to fund planned capital expenditures and expansion efforts and
strategic acquisitions we may make in the future, if any,
26
will depend on our ability to generate cash in the future. This, to a certain
extent, is subject to general economic, financial, competitive and other factors
that are beyond our control.
Based on our current level of operations, we believe our cash flow from
operations, together with available cash and available borrowings under our
senior credit facility, will be adequate to meet future liquidity needs for at
least the next twelve months. However, we cannot assure you that our business
will generate sufficient cash flow from operations in the future, that our
currently anticipated growth in revenues and cash flow will be realized on
schedule or that future borrowings will be available to us under the senior
credit facility in an amount sufficient to enable us to service indebtedness,
including the debt securities, or to fund other liquidity needs. We may need to
refinance all or a portion of our indebtedness, including the debt securities
and our senior credit facility, on or before maturity. We cannot assure you that
we will be able to do so on commercially reasonable terms or at all.
THE INDENTURE RELATED TO THE DEBT SECURITIES AND OUR SENIOR CREDIT FACILITY
CONTAIN VARIOUS COVENANTS WHICH LIMIT OUR MANAGEMENT'S DISCRETION IN THE
OPERATION OF OUR BUSINESS.
Our senior credit facility and the indenture related to the debt
securities contain various provisions that limit our management's discretion by
restricting our and our subsidiaries' ability to, among other things:
o incur additional indebtedness;
o pay dividends or distributions on, or redeem or repurchase,
capital stock;
o make investments;
o engage in transactions with affiliates;
o incur liens;
o transfer or sell assets; and
o consolidate, merge or transfer all or substantially all of our
assets.
In addition, our senior credit facility requires us to meet certain
financial ratios. Any failure to comply with the restrictions of our senior
credit facility, the indenture related to our 9 3/4% senior subordinated notes
due 2012, the indenture related to the debt securities or any other subsequent
financing agreements may result in an event of default. An event of default may
allow the creditors, if the agreements so provide, to accelerate the related
debt as well as any other debt to which a cross-acceleration or cross-default
provision applies. In addition, the lenders may be able to terminate any
commitments they had made to supply us with further funds.
WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS NECESSARY TO FINANCE THE CHANGE
OF CONTROL OFFER REQUIRED BY THE INDENTURE.
Upon the occurrence of certain specific kinds of change of control
events, we will be
27
required to offer to repurchase all outstanding debt securities. However, it is
possible that we will not have sufficient funds at the time of the change of
control to make the required repurchase of debt securities. In addition,
restrictions in our senior credit facility prohibit repurchases of the debt
securities unless a waiver is obtained from the lenders or our senior credit
facility is repaid in full. If we fail to repurchase the debt securities
following a change of control, we will be in default under the indenture related
to the debt securities, which will result in a cross-default under our senior
credit facility. Any future debt which we incur may also contain restrictions on
repayment of the debt securities. In addition, certain important corporate
events, such as leveraged recapitalizations, that would increase the level of
our indebtedness would not constitute a change of control under the indenture
related to the debt securities.
A PUBLIC MARKET FOR THE DEBT SECURITIES MAY NOT DEVELOP.
There can be no assurance that a public market for the debt securities
will develop or, if such a market develops, as to the liquidity of the market.
If a market were to develop, the debt securities could trade at prices that may
be higher or lower than their principal amount. We do not intend to apply for
listing of the debt securities on any securities exchange or for quotation of
the debt securities on any automated quotation system. If an active public
market does not develop or continue, the market price and liquidity of the debt
securities may be adversely affected.
In addition, the liquidity of the trading market in the debt
securities, and the market price quoted for the debt securities, may be
adversely affected by changes in the overall market for high-yield securities
and by changes in our financial performance or prospects or in the prospects for
companies in our industry generally. As a result, you cannot be sure that an
active trading market will develop for the debt securities.
FEDERAL AND STATE STATUTES ALLOW COURTS, UNDER SPECIFIC CIRCUMSTANCES, TO VOID
GUARANTEES AND REQUIRE SECURITY HOLDERS TO RETURN PAYMENTS RECEIVED FROM
GUARANTORS.
If a bankruptcy case or lawsuit is initiated by unpaid creditors of any
guarantor, the debt represented by the guarantees entered into by the guarantors
may be reviewed under the Federal bankruptcy law and comparable provisions of
state fraudulent transfer laws. Under these laws, a guarantee could be voided,
or claims in respect of the guarantee could be subordinated to certain
obligations of a guarantor if, among other things, the guarantor, at the time it
entered into the guarantee:
o received less than reasonably equivalent value or fair
consideration for entering into the guarantee; and
o either:
o was insolvent or rendered insolvent by reason of entering
into a guarantee; or
o was engaged in a business or transaction for which the
guarantor's remaining assets constituted unreasonably small
capital; or
o intended to incur, or believed that it would incur, debts or
contingent liabilities
28
beyond its ability to pay them as they become due.
In addition, any payment by a guarantor could be voided and required to
be returned to the guarantor or to a fund for the benefit of the guarantor's
creditors under those circumstances.
If a guarantee of a subsidiary were voided as a fraudulent conveyance
or held unenforceable for any other reason, holders of the debt securities would
be solely creditors of our company and creditors of our other subsidiaries that
have validly guaranteed the debt securities. The debt securities then would be
effectively subordinated to all liabilities of the subsidiary whose guarantee
was voided.
The measures of insolvency for purposes of these fraudulent transfer
laws will vary depending upon the law applied in any proceeding to determine
whether a fraudulent transfer has occurred. Generally, however, a guarantor
would be considered insolvent if:
o the sum of its debts, including contingent liabilities, were
greater than the fair saleable value of all of its assets; or
o the present fair saleable value of its assets were less than the
amount that would be required to pay its probable liability on
its existing debts, including contingent liabilities, as they
become absolute and mature; or
o it could not pay its debts or contingent liabilities as they
become due.
If the claims of the holders of the debt securities against any
subsidiary were subordinated in favor of other creditors of the subsidiary, the
other creditors would be entitled to be paid in full before any payment could be
made on the debt securities. If one or more of the guarantees is voided or
subordinated, we cannot assure you that after providing for all prior claims
there would be sufficient assets remaining to satisfy the claims of the holders
of the debt securities.
Based upon financial and other information, we believe that the
guarantees are being incurred for proper proposes and in good faith and that we,
and our subsidiaries that are guarantors, on a consolidated basis, are solvent
and will continue to be solvent after this offering is completed, will have
sufficient capital for carrying on our business after the issuance of the debt
securities and will be able to pay our debts as they mature. We cannot assure
you, however, as to the standard a court would apply in making these
determinations or that a court would agree with our conclusions in this regard.
FORWARD LOOKING STATEMENTS
Certain statements we make in this prospectus, and other written or
oral statements by us or our authorized officers on our behalf, may constitute
"forward looking statements" within the meaning of the Federal securities laws.
Forward-looking statements include statements concerning our plans, objectives,
goals, strategies, future events, future revenues or performance, capital
expenditures, financing needs, plans or intentions relating to acquisitions, our
competitive strengths and weaknesses, our business strategy and the trends we
anticipate in the industry and economies in which we operate and other
information that is not historical information. Words or phrases such as
"estimates," "expects," "anticipates," "projects," "plans," "intends,"
"believes"
29
and variations of such words or similar expressions are intended to identify
forward-looking statements. All forward-looking statements, including, without
limitation, our examination of historical operating trends, are based upon our
current expectations and various assumptions. Our expectations, beliefs and
projections are expressed in good faith, and we believe there is a reasonable
basis for them, but we cannot assure you that our expectations, beliefs and
projections will be realized.
Before you invest in our common stock or debt securities, you should be
aware that the occurrence of the events described in the immediately above
section captioned "Risk Factors" and otherwise discussed elsewhere in this
prospectus or in materials incorporated in this prospectus by reference to our
other filings with the Commission, could have a material adverse affect on our
business, financial condition and results of operation.
The data included in this prospectus regarding markets and ranking,
including the size of certain markets and our position and the position of our
competitors within these markets, are based on independent industry
publications, reports of government agencies or other published industry sources
or our estimates based on management's knowledge and experience in the markets
in which we operate. Our estimates have been based on information provided by
customers, suppliers, trade and business organizations and other contacts in the
markets in which we operate. We believe these estimates to be accurate as of the
date of this prospectus. However, this information may prove to be inaccurate
because of the method by which we obtained some of the data for our estimates or
because this information cannot always be verified with complete certainty due
to the limits on the availability and reliability of raw data, the voluntary
nature of the data gathering process and other limitations and uncertainties
inherent in a survey of market size. As a result, you should be aware that
market, ranking and other similar data included in this prospectus, and
estimates and beliefs based on that data, may not be reliable.
30
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of the securities for general
corporate purposes, which may include, but are not limited to, working capital,
capital expenditures and other potential acquisitions. We will set forth in the
applicable prospectus supplement our intended use for the net proceeds received
from our sale of any securities.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for the five years ended
December 31, 2001 and the nine months ended September 30, 2002 are set forth
below:
------------------------------------------------------------------------------------------
FOR THE NINE MONTHS
FOR THE YEAR ENDED DECEMBER 31, ENDED SEPTEMBER 30,
------------------------------------------------------------------------------------------
1997 1998 1999 2000 2001 2002
-------------------------------------------------------------------------------------------
Ratio of earnings to
fixed charges 10.5 12.4 6.2 1.5 * 4.6
==========================================================================================
* For the actual year ended December 31, 2001, the calculated ratio of earnings
to fixed charges is less than one-to- one and represents a deficiency of
approximately $125.6 million.
The ratios of earnings to fixed charges are calculated as follows:
(income before income taxes and minority interest) + (fixed charges) - (capitalized interest)
---------------------------------------------------------------------------------------------
(fixed charges)
DESCRIPTION OF THE DEBT SECURITIES
This prospectus describes certain general terms and provisions of our
debt securities. When we offer to sell a particular series of debt securities,
we will describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement whether the general terms
and provisions described in this prospectus apply to a particular series of debt
securities.
The debt securities are to be issued under an indenture which is
subject to and governed by the Trust Indenture Act of 1939, as amended (the
"TIA"), and may be supplemented or amended from time to time following its
execution. The indenture, and any supplemental indentures, will be subject to,
and governed by, the TIA. The form of indenture will be filed as a pre-effective
amendment to this prospectus. We have not yet executed an indenture. Prior to
issuing any debt securities, we will be required to select a trustee for the
indenture, qualify the trustee or trustees under the TIA, and execute the
indenture.
The form of the indenture will give us broad authority to set the
particular terms of each series of debt securities, including the right to
modify certain of the terms contained in the indenture. The particular terms of
a series of debt securities and the extent, if any, to which the particular
terms of the issue modify the terms of the form of indenture will be described
in the prospectus supplement relating to the debt securities.
31
The statements made hereunder relating to the indenture and the debt
securities to be issued thereunder are summaries of certain provisions thereof
and do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the indenture (including those terms
made a part of the indenture by reference to the TIA) and such debt securities.
GENERAL
The terms of each series of debt securities will be detailed or
determined in the manner provided in the indenture and any applicable
supplemental indenture. The particular terms of each series of debt securities
will be described in a prospectus supplement relating to the series, including
any pricing supplement.
We will set forth in a prospectus supplement (including any pricing
supplement) relating to any series of debt securities being offered, the initial
offering price, the aggregate principal amount and the following terms of the
debt securities, if applicable:
o the title of the debt securities;
o the price or prices (expressed as a percentage of the aggregate
principal amount) at which we will sell the debt securities;
o any limit on the aggregate principal amount of the debt
securities;
o the date or dates on which we will pay the principal on the debt
securities;
o the rate or rates (which may be fixed or variable) per annum or
the method used to determine the rate or rates (including any
commodity, commodity index, stock exchange index or financial
index) at which the debt securities will bear interest, the date
or dates from which interest will accrue, the date or dates on
which interest will commence and be payable and any regular
record date for the interest payable on any interest payment
date;
o the place or places where principal of, premium, and interest on
the debt securities will be payable;
o whether the debt securities rank as senior subordinated debt
securities or subordinated debt securities;
o the terms of any guarantee of any debt securities;
o the terms and conditions upon which we may redeem the debt
securities;
o any obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the
option of a holder of debt securities;
32
o the dates on which and the price or prices at which we will
repurchase the debt securities at the option of the holders of
debt securities and other detailed terms and provisions of these
repurchase obligations;
o the denominations in which the debt securities will be issued, if
other than denominations of $1,000 and any integral multiple
thereof;
o whether the debt securities will be issued in the form of
certificated debt securities or global debt securities;
o the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
o the currency of denomination of the debt securities;
o the designation of the currency, currencies or currency units in
which payment of principal of, premium and interest on the debt
securities will be made;
o if payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency
units other than that or those in which the debt securities are
denominated, the manner in which the exchange rate with respect
to these payments will be determined;
o the manner in which the amounts of payment of principal of,
premium or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index based on
a currency or currencies other than that in which the debt
securities are denominated or designated to be payable or by
reference to a commodity, commodity index, stock exchange index
or financial index;
o whether, the ratio at which and the terms and conditions upon
which, if any, the debt securities will be convertible into or
exchangeable for our common stock or our other securities or
securities of another person;
o any provisions relating to any security provided for the debt
securities;
o any addition to or change in the events of default described in
this prospectus or in the indenture with respect to the debt
securities and any change in the acceleration provisions
described in this prospectus or in the indenture with respect to
the debt securities;
o any addition to or change in the covenants described in this
prospectus or in the indenture with respect to the debt
securities;
o any other terms of the debt securities, which may modify or
delete any provision of the indenture as it applies to that
series; and
o any depositaries, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to the debt
securities.
33
TRANSFER AND EXCHANGE
A holder will be able to transfer or exchange debt securities in
accordance with the indenture. The registrar and the trustee may require a
holder, among other things, to furnish appropriate endorsements and transfer
documents in connection with a transfer of debt securities. Holders may be
required to pay all taxes due on transfer.
AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the indenture and the debt securities
may be amended or supplemented with the consent of the holders of at least a
majority in principal amount of the series then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for debt securities), and any existing default or compliance
with any provision of the indenture relating to a particular series of debt
securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding debt securities (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, debt securities).
Without the consent of each holder affected, an amendment or waiver may
not, among other things, (with respect to any debt securities held by a
non-consenting holder):
o reduce the principal amount of debt securities whose holders must
consent to an amendment, supplement or waiver;
o reduce the principal of or change the stated maturity of any debt
security;
o reduce the rate of or change the time for payment of interest on
any debt security;
o waive a default in the payment of principal or interest on the
debt securities; and
o make any debt security in money other than that stated in the
debt security.
The right of any holder to participate in any consent required or
sought pursuant to any provision of the indenture (and our obligation to obtain
any such consent otherwise required from such holder) may be subject to the
requirement that such holder shall have been the holder of record of any debt
securities with respect to which such consent is required or sought as of a date
identified by the trustee in a notice furnished to holders in accordance with
the terms of the indenture.
EVENTS OF DEFAULT AND REMEDIES
An event of default with respect to any series of debt securities will
be defined in the indenture as being, among other things, default in payment of
the principal of or premium, if any, on any of the debt securities of such
series; default for 30 days in payment of any installment of interest on any
debt security of such series; default by us for 60 days after notice in the
observance or performance of other covenants in the indenture relating to such
series; and certain events involving bankruptcy, insolvency or reorganization of
us.
34
Subject to certain limitations, the indenture will provide that the
holders of not less than a certain specified percentage in principal amount of
such series of debt securities then outstanding may, among other things, direct
the trustee in its exercise of any trust or power. However, the holders of a
majority in principal amount of the debt securities of such series then
outstanding by written notice to the trustee and us may waive any default with
respect to such series of debt securities.
DEFEASANCE OF INDENTURE
Subject to certain limitations, we may, at our option and at any time,
elect to have certain of our obligations discharged with respect to the
outstanding debt securities by, among other things, irrevocably depositing with
the trustee, in trust, for the benefit of the holders of the debt securities,
cash, United States government securities, or a combination of cash in U.S.
dollars and United States government securities, in amounts as will be
sufficient, in the opinion of an independent firm of certified public
accountants, to pay the principal of, and interest and premium, if any, on the
outstanding debt securities on the stated maturity or on the applicable
redemption date, as the case may be.
CONCERNING THE TRUSTEE
If the trustee becomes a creditor of Jarden or any guarantor, the
indenture will limit its right to obtain payment of claims in certain cases, or
to realize on certain property received in respect of any such claim as security
or otherwise. The trustee will be permitted to engage in other transactions;
however, if it acquires any conflicting interest it must eliminate such conflict
within an appropriate time period, apply to the Commission for permission to
continue or resign.
The holders of a majority in principal amount of the then outstanding
debt securities will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the trustee,
subject to certain exceptions. The indenture will provide that in case an event
of default occurs and is continuing, the trustee will be required, in the
exercise of its power, to use the degree of care of a prudent person in the
conduct of its own affairs. Subject to such provisions, the trustee will be
under no obligation to exercise any of its rights or powers under the indenture
at the request of any holder of debt securities, unless such holder has offered
to the trustee security and indemnity satisfactory to it against any loss,
liability or expense.
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The holders of our common stock, par value $0.01 per share, are
entitled to one vote for each share on all matters voted on by our stockholders,
including the election of directors. No holders of common stock have any right
to cumulative voting. Subject to any preferential rights of any outstanding
series of preferred stock created by our board of directors, the holders of our
common stock will be entitled to such dividends as may be declared from time to
time by our board of directors from funds available therefor. We currently do
not and do not intend to pay
35
cash dividends on our common stock in the foreseeable future, and, at this time,
are restricted from doing so under the terms of our credit facility.
In the event of a liquidation, dissolution or winding up, the holders
of our common stock are entitled to share ratably in all assets remaining after
payment of liabilities and the liquidation preference and other amounts owed to
the holders of our preferred stock. Holders of common stock have no preemptive
rights or rights to convert their common stock into any other securities. There
are no redemption or sinking fund provisions applicable to the common stock.
Subject to adjustment and certain limitations, each share of common stock has a
preferred stock purchase right that entitles the registered holder of the common
stock to purchase from us a unit consisting of one one-hundredth of a share of
our series A junior participating preferred stock, at an exercise price of
$45.00 per Right upon the happening of certain events. The preferred stock
purchase rights are not presently exercisable and will expire at the close of
business on March 22, 2003, unless earlier redeemed by us.
Our common stock is listed on the New York Stock Exchange under the
symbol "JAH."
PREFERRED STOCK
Our restated certificate of incorporation, as amended, authorizes our
board of directors to issue, without further stockholder action, up to 5,000,000
shares of preferred stock, in one or more series, having a par value of $.01 per
share, 250,000 of which has been designated as Series A Junior Participating
Preferred Stock. The board of directors is authorized to fix for each such
series the designation and relative rights (including, if any, conversion,
participation, voting and dividend rights and stated redemption and liquidation
values), preferences, limitations and restrictions, as are stated in the
resolutions adopted by the board of directors and as are permitted by General
Corporation Law of the State of Delaware. One right to purchase one
one-hundredth of a share of Series A Junior Participating Preferred Stock is
attached to each outstanding share of our common stock.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, shares of preferred
stock, or shares or common stock. We may issue warrants independently or
together with any other securities we offer pursuant to a prospectus supplement
and the warrants may be attached to or separate from the securities. We will
issue each series of warrants under a separate warrant agreement that we will
enter into with a bank or trust company, as warrant agent. We will set forth
additional terms of the warrants and the applicable warrant agreements in the
applicable prospectus supplement.
Each warrant will entitle the holder to purchase the principal amount
of debt securities or the number of shares of preferred stock or common stock at
the exercise price set forth in, or calculable as set forth in, the applicable
prospectus supplement. The exercise price may be subject to adjustment upon the
occurrence of certain events, as set forth in the applicable prospectus
supplement. After the close of business on the expiration date of the warrant,
unexercised warrants will become void. The place or places where, and the manner
in which, warrants may be exercised shall be specified in the applicable
prospectus supplement.
36
The applicable prospectus supplement will describe the following terms,
where applicable, of the warrants in respect of which this prospectus is being
delivered:
o the title of the warrants;
o the aggregate number of the warrants;
o the price or prices at which the warrants will be issued;
o the designation, aggregate principal amount and terms of the
securities issuable upon exercise of the warrants and the
procedures and conditions relating to the exercise of the
warrants;
o the designation and terms of any related securities with which
the warrants will be issued, and the number of warrants that will
be issued with each security;
o the date, if any, on and after which the warrants and the related
debt securities will be separately transferable;
o the price at which the securities purchasable upon exercise of
the warrants may be purchased;
o the date on which the right to exercise the warrants will
commence, and the date on which the right will expire;
o the maximum or minimum number of warrants which may be exercised
at any time;
o a discussion of certain U.S. federal income tax considerations
applicable to the exercise of the warrants; and
o any other terms of the warrants and terms, procedures and
limitations relating to the exercise of the warrants.
Holders may exchange warrant certificates for new warrant certificates
of different denominations, and may exercise warrants at the corporate trust
office of the warrant agent or any other office indicated in the applicable
prospectus supplement. Prior to the exercise of their warrants, holders of
warrants will not have any of the rights of holders of the securities
purchasable upon the exercise and will not be entitled to payments of principal,
premium or interest on the securities purchasable upon the exercise.
DESCRIPTION OF SENIOR INDEBTEDNESS
On April 24, 2002, we refinanced our existing senior indebtedness with
a new $100 million senior secured credit facility (the "Credit Facility")
pursuant to the terms of a Credit Agreement (the "Credit Agreement"), with Bank
of America, N.A., as Administrative Agent (the "Administrative Agent"), Swing
Line Lender, and L/C Issuer, Canadian Imperial Bank of Commerce, as Syndication
Agent, National City Bank of Indiana, as Documentation Agent, and the other
Lenders party thereto, including The Bank of New York, Fleet National Bank,
Harris
37
Trust and Savings Bank, U.S. Bank National Association, Allfirst Bank,
Transamerica Business Capital Corporation, and Union Federal Bank of
Indianapolis.
The Credit Agreement, among other things, provides for a new senior
credit facility for up to $100 million of senior secured loans, consisting of a
$50 million five-year revolving credit facility (the "Revolving Credit
Facility") and a $50 million five-year term loan facility (the "Term Loan
Facility").
The Revolving Credit Facility includes up to an aggregate of $10
million in standby and commercial letters of credit and up to an aggregate of
$10 million in swing line loans. As of June 30, 2002, we had not drawn any of
the $50 million available under the Revolving Credit Facility, although we used
$2.6 million of availability in connection with pre-existing letters of credit.
The Term Loan Facility was drawn in full, in the amount of $50 million,
at the closing of the Credit Facility and $48.75 million was outstanding as of
September 30, 2002 reflecting scheduled principal repayment since issuance.
Principal and interest under the Term Loan Facility are payable quarterly, in
accordance with a specified amortization schedule, with the final payment of all
amounts outstanding thereunder being due on April 24, 2007.
The Revolving Credit Facility and the Term Loan Facility bear interest
at a rate equal to (i) the Eurodollar Rate (as determined by the Administrative
Agent) pursuant to an agreed formula or (ii) a Base Rate equal to the higher of
(a) the Bank of America prime rate and (b) the federal funds rate plus .50%,
plus, in each case, an applicable margin ranging from .75% to 1.50% for Base
Rate loans and from 2.00% to 2.75% for Eurodollar Rate loans.
The Credit Agreement contains certain restrictions on the conduct of
our business, including, among other things, restrictions, generally, on:
o incurring debt, including any debt issued in connection with this
offering;
o disposing of certain assets;
o making investments;
o exceeding certain agreed capital expenditures;
o creating or suffering liens on our assets;
o completing certain mergers, consolidations, and with permitted
exceptions, acquisitions;
o declaring dividends;
o redeeming or prepaying other debt; and
o transactions with affiliates.
The Credit Agreement also requires us to maintain the following
financial covenants:
38
o our consolidated net worth may not be at any time less than the
sum of:
o $30,000,000;
o an amount equal to 50% of our consolidated net income
earned in each fiscal quarter ending after December 31,
2001 (with no deduction for a net loss in any such fiscal
quarter); and
o an amount equal to 100% of the aggregate increases in the
stockholders' equity of Jarden and our subsidiaries after
April 24, 2002 by reason of the issuance and sale of our
capital stock (including upon any conversion of our debt
securities into our capital stock);
o our total leverage ratio as of the end of any four-quarter period
may not be greater than the ratio set forth below opposite such
four-quarter period:
------------------------------------------------- --------------------------------------------
Four-Quarter Period ending closest to: Maximum Total Leverage Ratio
------------------------------------------------- --------------------------------------------
September 30, 2002;
December 31, 2002;
March 31, 2003; 3.50 to 1.00
June 30, 2003; and
September 30, 2003
------------------------------------------------- --------------------------------------------
December 31, 2003;
March 31, 2004;
June 30, 2004; and 3.25 to 1.00
September 30, 2004
------------------------------------------------- --------------------------------------------
December 31, 2004 and thereafter 3.00 to 1.00
------------------------------------------------- --------------------------------------------
o our senior leverage ratio as of the end of any four-quarter
period may not be greater than the ratio set forth below opposite
such four-quarter period:
------------------------------------------------- --------------------------------------------
Four-Quarter Period ending closest to: Maximum Senior Leverage Ratio
------------------------------------------------- --------------------------------------------
September 30, 2002;
December 31, 2002; and 2.00 to 1.00
March 31, 2003
------------------------------------------------- --------------------------------------------
39
------------------------------------------------- --------------------------------------------
June 30, 2003;
September 30, 2003;
December 31, 2003; 1.75 to 1.00
March 31, 2004;
June 30, 2004; and
September 30, 2004
------------------------------------------------- --------------------------------------------
December 31, 2004 and thereafter 1.50 to 1.00
------------------------------------------------- --------------------------------------------
; and
o our fixed charge ratio as of the end of any applicable period,
beginning with the period ending closest to September 30, 2002,
may not be less than 1.25 to 1.00.
However, the Credit Agreement does not make any significant
restrictions on our or our domestic subsidiaries' ability to obtain funds from
their respective subsidiaries by dividend or loan.
The occurrence of certain events or conditions described in the Credit
Agreement (subject to grace periods in certain cases) constitutes an event of
default. If an event of default occurs, the Administrative Agent may, at the
request or consent of the Lenders, among other things, declare the entire
outstanding balance of principal and interest of all outstanding loans to be
immediately due and payable. The events of default include, among other things:
o our failure to pay any principal, interest, or other fees when
due;
o any material judgment or order entered against us;
o any inaccuracy in the representations and warranties;
o failure to observe certain covenants under the Credit Agreement
(including, e.g., the financial covenants);
o bankruptcy, insolvency or receivership proceedings with respect
to Jarden; and
o a change of control of Jarden.
The Credit Agreement provides that we shall make required prepayments
of the Term Loan and Revolving Loan, including, among other things, upon the
happening of the following events:
o in the event that our total leverage ratio is greater than 3.00
to 1.00 as of the end of any fiscal year, beginning with the
fiscal year ending December 31, 2002, we must
40
make a prepayment in an amount equal to fifty percent (50%) of
the amount of excess cash flow, each such prepayment to be made
on the date our and our subsidiaries' financial statements for
such fiscal year are required to be delivered (or if earlier, the
date such financial statements are delivered) pursuant to the
Credit Agreement;
o we must make, or must cause each applicable subsidiary to make, a
prepayment with respect to each private or public offering of
equity securities of Jarden or any of our subsidiaries (other
than equity securities issued to Jarden or a guarantor) in an
amount equal to fifty percent (50%) of the net proceeds of each
issuance of equity securities of the Jarden or any of our
subsidiaries, each such prepayment to be made within ten (10)
business days of receipt of such proceeds and upon not less than
five (5) business days' prior written notice to the
Administrative Agent; however, no prepayment shall be required of
the first $10,000,000 of net proceeds in each fiscal year of
Jarden realized from (x) the issuance of equity securities in
connection with the exercise of any option, warrant or other
convertible security of Jarden or any of our subsidiaries or (y)
the issuance, award or grant of equity securities to eligible
participants under a stock plan of Jarden.
o we must make, or must cause each applicable subsidiary to make, a
prepayment in an amount equal to one hundred percent (100%) of
the net proceeds from each Disposition (as defined below) other
than certain Permitted Dispositions (as defined below), each such
prepayment to be made within ten (10) business days of receipt of
the net proceeds thereof and upon not less than five (5) business
days' prior written notice to the Administrative Agent.
Disposition means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any
property by any person, including any sale, assignment, transfer
or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated
therewith. A Disposition shall not include (a "Permitted
Disposition"):
o Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of
business;
o Dispositions of inventory in the ordinary course of
business;
o Dispositions by Jarden or any of our subsidiaries of
equipment or real property which is replaced by equipment
or real property of substantially equivalent or greater
utility and value within ninety (90) days of the date of
disposition thereof, provided that if the fair market value
of the property so disposed of is greater than $3,000,000,
the Administrative Agent will have received notice of such
disposition from us not less than twenty (20) days prior to
the consummation of such disposition;
o Dispositions of property (i) by any of our subsidiaries to
a guarantor, (ii) by us or any guarantor to any guarantor,
and (iii) by any of our subsidiaries that is not a
guarantor to any other of our subsidiaries that is not a
guarantor;
o any of our subsidiaries may merge with or transfer
substantially all its assets (upon voluntary liquidation or
otherwise) to any guarantor, provided that, if a
41
merger, the guarantor must be the continuing or surviving
person, and provided further that if a transfer of assets
in the form of a sale by a subsidiary that is not a
guarantor, the sale shall be at fair market value and the
aggregate amount of all such sales will not exceed
$5,000,000;
o any of our subsidiaries substantially all of whose assets
consist of other subsidiaries' securities or other equity
securities in any person may merge with or transfer
substantially all its assets (upon voluntary liquidation or
otherwise) to us, provided that, if a merger, we will be
the continuing or surviving person, and provided further
that if a transfer of assets in the form of a sale by a
subsidiary that is not a guarantor, the sale will be at
fair market value and the aggregate amount of all such
sales will not exceed $5,000,000;
o any of our subsidiaries that is not a guarantor may merge
with or sell substantially all its assets (upon voluntary
liquidation or otherwise) to any one or more subsidiaries
that is not a guarantor; and
o Dispositions not otherwise permitted by above, so long as
the aggregate fair market value of all such property so
disposed in any fiscal year of Jarden does not exceed
$35,000,000 and the net proceeds therefrom are applied in
accordance with the Credit Agreement;
o In the event that the net proceeds received from insurance
carried with respect to the collateral securing our obligations
under the Credit Agreement and the other loan documents is not
completely and fully utilized for the repair or replacement of
such collateral, we must make, or must cause each applicable
subsidiary to make, a prepayment in an amount equal to one
hundred percent (100%) of the net proceeds received with respect
to such insurance that is not so utilized.
In connection with entering into the Credit Agreement, all of our
domestic subsidiaries, including Hearthmark, Inc., Alltrista Plastics
Corporation, Alltrista Newco Corporation, Alltrista Zinc Products, L.P., TriEnda
Corporation, Tilia, Inc. (formerly known as Alltrista Acquisition I, Inc.),
Tilia Direct, Inc. (formerly known as Alltrista Acquisition II, Inc.), and Tilia
International, Inc. (formerly known as Alltrista Acquisition III, Inc.), and
Quoin Corporation, have agreed to guarantee our obligations under the Credit
Agreement.
Pursuant to a securities pledge agreement, all obligations under the
Credit Agreement are secured by a security interest in all of the capital stock
or other equity interests of each of our existing or future direct or indirect
domestic subsidiaries, and 65% of the voting capital stock or other equity
interests and 100% of the nonvoting stock or other equity interests of each of
our (or any of our direct or indirect domestic subsidiaries') existing or future
direct foreign subsidiaries. Pursuant to the terms of a security agreement and
an intellectual property security agreement, the obligations under the Credit
Agreement are also secured by a security interest in substantially all of the
assets and properties of us and our domestic subsidiaries.
The foregoing is a summary of the material provisions of the Credit
Agreement and certain of the documents entered into by us and our domestic
subsidiaries in connection therewith which are incorporated herein by reference.
42
PLAN OF DISTRIBUTION
We may sell securities to or through underwriters and also may sell
securities directly to purchasers or through agents. We will name any
underwriter or agent involved in the offer and sale of securities in the
applicable prospectus supplement.
We may distribute the securities from time to time in one or more
transactions:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale;
o at prices related to such prevailing market prices; or
o at negotiated prices.
We may also, from time to time, authorize dealers, acting as our
agents, to offer and sell securities upon the terms and conditions set forth in
the applicable prospectus supplement. In connection with the sale of securities,
we, or the purchasers of securities for whom the underwriters may act as agents,
may compensate underwriters in the form of discounts, concessions or
commissions. Underwriters may sell the securities to or through dealers, and
those dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent. Underwriters, dealers and agents participating in
the distribution of securities may be deemed to be underwriters under the
Securities Act, and any discounts or commissions they receive from us and any
profit they realize on resale of the securities may be deemed to be underwriting
discounts and commissions under the Securities Act. We will describe in the
applicable prospectus supplement any compensation we pay to underwriters or
agents in connection with the offering of securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers.
We may enter into agreements to indemnify underwriters, dealers and
agents who participate in the distribution of securities against certain
liabilities, including liabilities under the Securities Act.
To facilitate the offering of securities, certain persons participating
in the offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. This may include over-allotments or short
sales of the securities, which involve the sale by persons participating in the
offering of more securities than we sold to them. In these circumstances, these
persons would cover such over-allotments or short positions by making purchases
in the open market or by exercising their over-allotment option, if any. In
addition, these persons may stabilize or maintain the price of the securities by
bidding for or purchasing securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in the
offering may be reclaimed if securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may
be to stabilize or maintain the
43
market price of the securities at a level above that which might otherwise
prevail in the open market. These transactions may be discontinued at any time.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for us in the ordinary course
of our business.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act,
and in accordance therewith we are required to file periodic reports, proxy
statements and other information with the Commission. Such reports, proxy
statements and other information filed by us can be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, as well as the Regional Offices of the
Commission at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, at the prescribed rates. The Commission also maintains a site on
the World Wide Web that contains reports, proxy and information statements and
other information regarding registrants that file electronically. The address of
such site is http://www.sec.gov. The telephone number of the Public Reference
Room of the Commission is 1-800-SEC-0330. In addition, similar information can
be inspected at the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
With respect to the common stock, preferred stock, warrants, and debt
securities, this prospectus omits certain information that is contained in the
registration statement on file with the Commission, of which this prospectus is
a part. For further information with respect to us and our common stock,
preferred stock, warrants, and debt securities, reference is made to the
registration statement, including the exhibits incorporated therein by reference
or filed therewith. Statements herein contained concerning the provisions of any
document are not necessarily complete and, in each instance, reference is made
to the copy of such document filed as an exhibit or incorporated by reference to
the registration statement. The registration statement and the exhibits may be
inspected without charge at the offices of the Commission or copies thereof
obtained at prescribed rates from the public reference section of the Commission
at the addresses set forth above.
44
You should rely on the information contained in this prospectus and in
the registration statement as well as other information you deem relevant. We
have not authorized anyone to provide you with information different from that
contained in this prospectus. This prospectus is an offer to sell, or a
solicitation of offers to buy, securities only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or any sale or exchange of securities, however, we have a duty
to update that information while this prospectus is in use by you where, among
other things, any facts or circumstances arise which, individually or in the
aggregate, represent a fundamental change in the information contained in this
prospectus or any material information with respect to the plan of distribution
was not previously disclosed in the prospectus or there is any material change
to such information in the prospectus. This prospectus does not offer to sell or
solicit any offer to buy any securities other than the common stock, preferred
stock, warrants, and debt securities to which it relates, nor does it offer to
buy any of these securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction.
45
EXPERTS
The consolidated financial statements of Jarden Corporation and
subsidiaries (formerly Alltrista Corporation and subsidiaries) appearing in its
Annual Report (Form 10-K/A) for the year ended December 31, 2001, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
The consolidated financial statements of Tilia International, Inc. and
its subsidiaries incorporated by reference in this prospectus and elsewhere in
the registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto. Arthur
Andersen LLP has not consented to the inclusion of their report in this
prospectus, and we have dispensed with the requirement to file their consent in
reliance upon Rule 437a of the Securities Act of 1933. Because Arthur Andersen
LLP has not consented to the inclusion of their report in this prospectus, you
will not be able to recover against Arthur Andersen LLP under Section 11 of the
Securities Act for any untrue statements of a material fact contained in the
financial statements audited by Arthur Andersen LLP or any omissions to state a
material fact required to be stated therein.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
us by Kane Kessler, P.C., New York, New York. Any underwriters will be advised
about the other issues relating to any offering by their own legal counsel.
46
- -------------------------------------------------------------------------------
PROSPECTUS
JARDEN CORPORATION
$150,000,000
DEBT SECURITIES, COMMON STOCK,
PREFERRED STOCK, AND WARRANTS
------------------------
___________ __, 2003
UNTIL ___________ __, 2003, ALL DEALERS THAT EFFECT TRANSACTIONS IN
THESE SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS' OBLIGATION TO
DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS.
- -------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by us in connection with the distribution of
the securities being registered are as set forth in the following table:
Securities and Exchange Commission Fee $ 13,800
*Legal Fees and Expenses 200,000
*Accounting Fees and Expenses 35,000
*Printing Expenses 50,000
*Blue Sky Fees 7,500
*Trustee/Issuing & Paying Agent Fees and Expenses 5,000
*Transfer Agent Fees & Expenses 5,000
*Miscellaneous 33,700
-------------
*Total $ 350,000
=============
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify any person 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 the fact that he
or she is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding (i) if such person acted in
good faith and in a manner that person reasonably believed to be in or not
opposed to the best interests of the corporation and (ii) with respect to any
criminal action or proceeding, if he or she had no reasonable cause to believe
such conduct was unlawful. In actions brought by or in the right of the
corporation, a corporation may indemnify such person against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person acted in
good faith and in a manner that person 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 that person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnification for such
expenses which the Court of Chancery or other such court shall deem proper. To
the extent that such person has been successful on the merits or otherwise in
defending any such action, suit or proceeding referred to above or any claim
issue or matter
II-1
therein, he or she is entitled to indemnification for expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. The indemnification and advancement of expenses provided for or
granted pursuant to Section 145 is not exclusive of any other rights of
indemnification or advancement of expenses to which those seeking
indemnification or advancement of expenses may be entitled, and a corporation
may purchase and maintain insurance against liabilities asserted against any
former or current director, officer, employee or agent of the corporation, or a
person who is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, whether or not the power to indemnify is provided by
the statute.
Article VII, Section B of Jarden's Restated Certificate of
Incorporation, as amended, provides the following:
1. Jarden shall indemnify each person who is or was a director,
officer or employee of Jarden, or of any other corporation,
partnership, joint venture, trust or other enterprise which he is
serving or served in any capacity at the request of Jarden,
against any and all liability and reasonable expense that may be
incurred by him in connection with or resulting from any claim,
actions, suit or proceeding (whether actual or threatened,
brought by or in the right of Jarden or such other corporation,
partnership, joint venture, trust or other enterprise, or
otherwise, civil, criminal, administrative, investigative, or in
connection with an appeal relating thereto), in which he may
become involved, as a party or otherwise, by reason of his being
or having been a director, officer or employee of Jarden or of
such other corporation, partnership, joint venture, trust or
other enterprise or by reason of any past or future action taken
or not taken in his capacity as such director, officer or
employee, whether or not he continues to be such at the time such
liability or expense is incurred, provided that a determination
is made by Jarden in accordance with Delaware law that such
person acted in good faith and in a manner he reasonably believed
to be in the best interests of Jarden or at least not opposed to
the best interests of such other corporation, partnership, joint
venture, trust or other enterprise, as the case may be, and, in
addition, in any criminal action or proceedings, had reasonable
cause to believe his conduct was lawful or no reasonable cause to
believe that his conduct was unlawful. The termination of a
proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent is not, of itself,
determinative that the person did not meet the standard of
conduct described in the previous sentence. Notwithstanding the
foregoing, there shall be no indemnification (a) as to amounts
paid or payable to Jarden or such other corporation, partnership,
joint venture, trust or other enterprise, as the case may be, for
or based upon the director, officer or employee having gained in
fact any personal profit or advantage to which he was not legally
entitled; (b) as to amounts paid or payable to Jarden for an
accounting of profits in fact made from the purchase or sale of
securities of Jarden within the meaning of Section 16(b) of the
Exchange Act and amendments thereto or similar provisions of any
state statutory law; or (c) with respect to matters as to which
indemnification would be in contravention of the laws of the
State of Delaware or of the United States of America whether as a
matter of public policy or pursuant to statutory provisions.
II-2
2. Any such director, officer or employee who has been wholly
successful, on the merits or otherwise, with respect to any
claim, action, suit or proceeding of the character described
herein shall be entitled to indemnification as of right, except
to the extent he has otherwise been indemnified. Except as
provided in the preceding sentence, any indemnification hereunder
shall be granted by Jarden, but only if (a) the Board of
Directors of Jarden, acting by a quorum consisting of directors
who are not partners to or who have been wholly successful with
respect to such claim, action, suit or proceeding, shall find
that the director, officer or employee has met the applicable
standards of conduct set forth in paragraph 1 of this Section B
of Article VII; or (b) outside legal counsel engaged by Jarden
(who may be regular counsel of Jarden) shall deliver to Jarden
its written opinion that such director, officer or employee has
met such applicable standards of conduct; or (c) a court of
competent jurisdiction has determined that such director, officer
or employee has met such standards, in an action brought either
by Jarden, or by the director, officer or employee seeking
indemnification, applying de novo such applicable standards of
conduct. The termination of any claim, action, suit or
proceeding, civil or criminal, by judgment, settlement (whether
with or without court approval) or conviction or upon a plea of
guilty or of nolo contendere, or its equivalent, shall not create
a presumption that a director, officer or employee did not meet
the applicable standards of conduct set forth in paragraph 1 of
this Section B of Article VII.
3. As used in this Section B of Article VII, the term "liability"
shall mean amounts paid in settlement or in satisfaction of
judgments of fines or penalties, and the term "expense" shall
include, but not be limited to, attorneys' fees and
disbursements, incurred in connection with the claim, action,
suit or proceeding. Jarden may advance expenses to, or where
appropriate may at its option and expense undertake the defense
of, any such director, officer or employee upon receipt of an
undertaking by or on behalf of such person to repay such expenses
if it should ultimately be determined that the person is not
entitled to indemnification under this Section B of Article VII.
4. The provisions of this Section B of Article VII shall be
applicable to claims, actions, suits or proceedings made or
commenced after the adoption hereof, whether arising from acts or
omissions to act occurring before or after the adoption hereof.
If several claims, issues or matters of action are involved, any
such director, officer or employee may be entitled to
indemnification as to some matters even though he is not so
entitled as to others. The rights of indemnification provided
hereunder shall be in addition to any rights to which any
director, officer or employee concerned may otherwise be entitled
by contract or as a matter of law, and shall inure to the benefit
of the heirs, executors and administrators of any such director,
officer or employee. Any repeal or modification of the provisions
of this Section B of Article VII by the stockholders of Jarden
shall not adversely affect any rights to indemnification and
advancement of expenses existing pursuant to this Section B of
Article VII with respect to any acts or omissions occurring prior
to such repeal or modification.
The directors and officers of Jarden are insured (subject to certain
exceptions and deductions) against liabilities which they may incur in their
capacity as such including liabilities under the Securities Act, under liability
insurance policies carried by Jarden.
II-3
ITEM 16. EXHIBITS
Exhibit Description
- ------- -----------
1.1 Form of Underwriting Agreement. (3)
3.1 Restated Certificate of Incorporation of Jarden Corporation (filed
as Exhibit 3.1 to Jarden's Annual Report on Form 10-K, filed with
the Commission on March 27, 2002 and incorporated herein by
reference).
3.2 Certificate of Amendment of Restated Certificate of Incorporation
of Jarden Corporation (filed as Exhibit 3.2 to Jarden's Current
Report on Form 8-K, filed with the Commission on June 4, 2002 and
incorporated herein by reference).
3.3 Bylaws of Jarden Corporation (filed as Exhibit C to Jarden's
Definitive Proxy Statement, filed with the Commission on November
26, 2001 and incorporated herein by reference).
4.1 Form of Indenture. (2)
4.2 Form of Debt Security. (3)
5.1 Opinion of Kane Kessler, P.C. (1)
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (1)
23.1 Consent of Ernst & Young LLP. (1)
23.2 Consent of Kane Kessler, P.C. (Included in Exhibit 5.1)(1)
24.1 Powers of Attorney (See signature pages of this registration
statement). (1)
25.1 Statement of Eligibility of Trustee under the Trust Indenture Act
of 1939 of a Corporation Designated to Act as Trustee on
Form T-1. (2)
(1) Filed herewith.
(2) To be filed by pre-effective amendment.
(3) To be filed by amendment or by a report on Form 8-K pursuant to
Item 601(b) of Regulation S-K.
II-4
ITEM 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities
offered (if the total dollar value of
securities offered would not exceed that
which was registered) and any deviation from
the low or high end of the estimated maximum
offering range may be reflected in the form
of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no
more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by Jarden pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of Jarden's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to
II-5
section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of Jarden pursuant to the foregoing
provisions, or otherwise, Jarden has been advised that in the
opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by Jarden of expenses incurred or paid by a director,
officer or controlling person of Jarden 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, Jarden will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
D. We further undertake that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance under Rule 430A and contained in a form of
prospectus filed by us pursuant to Rule 424(b)(1) or (4),
or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it
was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
E. We hereby undertake to file an application for the purpose of
determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Securities and Exchange Commission under Section 305(b)(2) of
the Trust Indenture Act.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
JARDEN CORPORATION
By: /s/ Ian G.H. Ashken
--------------------------------------
Name: Ian G.H. Ashken
Title: Vice Chairman, Chief Financial
Officer, and Secretary
II-7
POWER OF ATTORNEY
Each of the undersigned officers and directors of Jarden Corporation
hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Chairman and Chief Executive January 7, 2003
- ------------------------------------ Officer (Principal Executive
Martin E. Franklin Officer)
/s/ Ian G.H. Ashken Vice Chairman, Chief Financial January 7, 2003
- ------------------------------------ Officer and Secretary (Principal
Ian G. H. Ashken Financial Officer and Principal
Accounting Officer)
/s/ Rene-Pierre Azria Director January 7, 2003
- ------------------------------------
Rene-Pierre Azria
/s/ Douglas W. Huemme Director January 7, 2003
- ------------------------------------
Douglas W. Huemme
/s/ Richard L. Molen Director January 7, 2003
- ------------------------------------
Richard L. Molen
/s/ Lynda W. Popwell Director January 7, 2003
- ------------------------------------
Lynda W. Popwell
/s/ Irwin D. Simon Director January 7, 2003
- ------------------------------------
Irwin D. Simon
/s/ Robert L. Wood Director January 7, 2003
- ------------------------------------
Robert L. Wood
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
ALLTRISTA NEWCO CORPORATION
By: /s/ Ian G.H. Ashken
---------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-9
POWER OF ATTORNEY
Each of the undersigned officers and directors of Alltrista Newco
Corporation hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Director and President January 7, 2003
- ------------------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, and Treasurer January 7, 2003
- ------------------------------------
Ian G. H. Ashken
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
ALLTRISTA PLASTICS CORPORATION
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-11
POWER OF ATTORNEY
Each of the undersigned officers and directors of Alltrista Plastics
Corporation hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Director and President January 7, 2003
- ------------------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, and Treasurer January 7, 2003
- ------------------------------------
Ian G. H. Ashken
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
ALLTRISTA ZINC PRODUCTS, L.P.
By: Alltrista Newco Corporation
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-13
POWER OF ATTORNEY
The undersigned general partner of Alltrista Zinc Products, L.P. hereby
severally constitutes and appoints Ian G. H. Ashken as the attorney-in-fact for
the undersigned, in any and all capacities, with full power of substitution, to
sign any and all pre- or post-effective amendments to this registration
statement, any subsequent registration statement for the same offering which may
be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
and any and all pre- or post-effective amendments thereto, and to file the same
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Ian G.H. Ashken Treasurer and Secretary of January 7, 2003
- ------------------------------------ Alltrista Newco Corporation, the
Ian G.H. Ashken general partner of Alltrista Zinc
Products, L.P.
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
HEARTHMARK, INC.
By: /s/ Ian G.H. Ashken
-------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-15
POWER OF ATTORNEY
Each of the undersigned officers and directors of Hearthmark, Inc.
hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Director and President January 7, 2003
- ------------------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, and Treasurer January 7, 2003
- ------------------------------------
Ian G. H. Ashken
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
QUOIN CORPORATION
By: /s/ Ian G.H. Ashken
------------------------
Name: Ian G.H. Ashken
Title: Treasurer
II-17
POWER OF ATTORNEY
Each of the undersigned officers and directors of Quoin Corporation
hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Director and President January 7, 2003
- ------------------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director and Treasurer January 7, 2003
- ------------------------------------
Ian G. H. Ashken
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
TILIA, INC.
By: /s/ Ian G.H. Ashken
---------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-19
POWER OF ATTORNEY
Each of the undersigned officers and directors of Tilia, Inc. hereby
severally constitutes and appoints Ian G. H. Ashken as the attorney-in-fact for
the undersigned, in any and all capacities, with full power of substitution, to
sign any and all pre- or post-effective amendments to this registration
statement, any subsequent registration statement for the same offering which may
be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
and any and all pre- or post-effective amendments thereto, and to file the same
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Director and Vice President January 7, 2003
- ------------------------------------
Martin E. Franklin
/s/ Desiree DeStefano Director and Vice President January 7, 2003
- ------------------------------------
Desiree DeStefano
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
TILIA DIRECT, INC.
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-21
POWER OF ATTORNEY
Each of the undersigned officers and directors of Tilia Direct, Inc.
hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Ian G.H. Ashken Director, Secretary, and Treasurer January 7, 2003
- ------------------------------------
Ian G. H. Ashken
/s/ J. David Tolbert Director January 7, 2003
- ------------------------------------
J. David Tolbert
II-22
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rye, State of New York, on January 7, 2003.
TILIA INTERNATIONAL, INC.
By: /s/ Ian G.H. Ashken
-------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
II-23
POWER OF ATTORNEY
Each of the undersigned officers and directors of Tilia International,
Inc. hereby severally constitutes and appoints Ian G. H. Ashken as the
attorney-in-fact for the undersigned, in any and all capacities, with full power
of substitution, to sign any and all pre- or post-effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and any and all pre- or post-effective amendments thereto, and
to file the same with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Name Title Date
---- ----- ----
/s/ Martin E. Franklin Director and Vice President January 7, 2003
- ------------------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, and Treasurer January 7, 2003
- ------------------------------------
Ian G. H. Ashken
II-24
INDEX TO EXHIBITS
Exhibit Description
- ------- -----------
1.1 Form of Underwriting Agreement. (3)
3.1 Restated Certificate of Incorporation of Jarden Corporation (filed
as Exhibit 3.1 to Jarden's Annual Report on Form 10-K, filed with
the Commission on March 27, 2002 and incorporated herein by
reference).
3.2 Certificate of Amendment of Restated Certificate of Incorporation
of Jarden Corporation (filed as Exhibit 3.2 to Jarden's Current
Report on Form 8-K, filed with the Commission on June 4, 2002 and
incorporated herein by reference).
3.3 Bylaws of Jarden Corporation (filed as Exhibit C to Jarden's
Definitive Proxy Statement, filed with the Commission on November
26, 2001 and incorporated herein by reference).
4.1 Form of Indenture. (2)
4.2 Form of Debt Security. (3)
5.1 Opinion of Kane Kessler, P.C. (1)
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (1)
23.1 Consent of Ernst & Young LLP. (1)
23.2 Consent of Kane Kessler, P.C. (Included in Exhibit 5.1)(1)
24.1 Powers of Attorney (See signature pages of this registration
statement). (1)
25.1 Statement of Eligibility of Trustee under the Trust Indenture Act
of 1939 of a Corporation Designated to Act as Trustee on
Form T-1. (2)
(1) Filed herewith.
(2) To be filed by pre-effective amendment.
(3) To be filed by amendment or by a report on Form 8-K pursuant to
Item 601(b) of Regulation S-K.