As filed with the Securities and Exchange Commission on January 29, 2003
Registration File Nos.: 333-102387; 333-102387-01; 333-102387-02; 333-102387-03;
333-102387-04; 333-102387-05; 333-102387-06333-102387-07; 333-102387-08
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
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. [ ]
-----------------------------------
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
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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
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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 29, 2003.
PROSPECTUS
JARDEN CORPORATION
$150,000,000
DEBT SECURITIES, COMMON STOCK,
PREFERRED STOCK, AND WARRANTS
---------------
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
1
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 28, 2003, the last reported sale price of our shares on the
New York Stock Exchange was $26.06 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.
---------------
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.
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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
Our significant indebtedness could adversely affect our financial
health, and prevent us from fulfilling our obligations under our debt..................................... 22
We will require a significant amount of cash to service our indebtedness.
Our ability to generate cash depends on many factors beyond our control................................... 23
The indenture related to the debt securities, our 9 3/4% senior subordinated
notes due 2012, and our senior credit facility contain various covenants
which limit our management's discretion in the operation of our business.................................. 24
We may not have the ability to raise the funds necessary
to finance the change of control offer required by the
indenture related to our 9 3/4% senior subordinated notes due 2012........................................ 25
Delaware law and our rights plan may limit possible takeovers............................................... 25
The market price for our common stock is volatile........................................................... 25
We may issue a substantial amount of our common stock in connection with future
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Page
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acquisitions and the sale of those shares could adversely affect our stock price.......................... 26
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........................................ 26
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....................................... 26
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........................................... 27
Since the debt securities are unsecured, your right to enforce remedies
is limited by the rights of holders of secured debt....................................................... 27
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......................................................... 28
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.................................................................................... 30
USE OF PROCEEDS............................................................................................... 31
RATIO OF EARNINGS TO FIXED CHARGES............................................................................ 31
DESCRIPTION OF THE DEBT SECURITIES............................................................................ 31
DESCRIPTION OF CAPITAL STOCK.................................................................................. 38
DESCRIPTION OF WARRANTS....................................................................................... 38
DESCRIPTION OF SENIOR INDEBTEDNESS............................................................................ 40
PLAN OF DISTRIBUTION.......................................................................................... 45
WHERE YOU CAN FIND MORE INFORMATION........................................................................... 46
EXPERTS....................................................................................................... 47
LEGAL MATTERS................................................................................................. 47
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
5
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
---------------
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 current report on Form 8-K, Date of Event - January 7, 2003,
filed on January 10, 2002;
(n) Our definitive proxy statement on Schedule 14A filed on April 30,
2002;
(o) 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
(p) 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.
8
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.
11
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
12
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.
14
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.
OUR SIGNIFICANT INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH, AND
PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER OUR DEBT.
22
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;
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.
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, our 9 3/4% senior subordinated notes due 2012,
and amounts borrowed under our senior
23
credit facility, and to fund planned capital expenditures and expansion efforts
and strategic acquisitions we may make in the future, if any, 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,
our 9 3/4% senior subordinated notes due 2012, 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, OUR 9 3/4% SENIOR SUBORDINATED
NOTES DUE 2012, AND OUR SENIOR CREDIT FACILITY CONTAIN VARIOUS COVENANTS WHICH
LIMIT OUR MANAGEMENT'S DISCRETION IN THE OPERATION OF OUR BUSINESS.
Our senior credit facility, the indenture related to our 9 3/4% senior
subordinated notes due 2012, 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.
24
WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS NECESSARY TO FINANCE THE CHANGE
OF CONTROL OFFER REQUIRED BY THE INDENTURE RELATED TO OUR 9 3/4% SENIOR
SUBORDINATED NOTES DUE 2012.
Upon the occurrence of certain specific kinds of change of control
events, we will be required to offer to repurchase all outstanding notes under
the indenture related to our 9 3/4% senior subordinated notes due 2012. 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 these notes. In addition,
restrictions in our senior credit facility prohibit repurchases of the notes
unless a waiver is obtained from the lenders or our senior credit facility is
repaid in full. If we fail to repurchase the notes following a change of
control, we will be in default under the indenture related to the notes, which
will result in a cross-default under our senior credit facility. Any future
debt, including the debt securities, which we incur may also contain
restrictions on repayment of the notes. 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 notes.
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 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.
25
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 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.
26
RISKS RELATING TO THE DEBT SECURITIES
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 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.
27
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.
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
28
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 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.
29
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" 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, and to make certain
required prepayments under our senior credit facility. See the section titled
"Description of Senior Indebtedness" for a detailed description of required
prepayments. 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 between us and
a trustee, 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 Trust Indenture Act of 1939, as amended (the "TIA").
The form of the indenture gives 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.
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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.
We have filed a copy of the indenture as an exhibit to the registration
statement. Capitalized terms used in the summary below have the meanings
specified in the indenture.
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 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 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 be payable and any regular record
date for the interest payable on any interest payment date;
o the place or places where principal of and any 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;
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;
32
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, currencies, or currency units in which payment of
the principal of and any premium and interest debt securities will
be made;
o if payments of principal of or any premium and 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
stated to be payable, the currency, currencies, or currency units
in which payment of principal of or any premium and interest on
the debt securities as to which such election is made will be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
o the manner in which the amounts of payment of principal of or any
premium or interest on the debt securities will be determined, if
these amounts may be determined by reference to an index, based
upon a formula, or in some other manner;
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 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; and
o any other terms of the debt securities, which may modify or delete
any provision of the indenture as it applies to that series.
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.
EVENTS OF DEFAULT AND REMEDIES
An event of default means with respect to any series of debt
securities, any of the following:
o default in the payment of any interest upon any debt security of
that series when it becomes due and payable, and continuance of
that default for a period of 30 days;
33
o default in the payment of the principal of or premium, if any, on
any debt security of that series when it becomes due and payable;
o default in the making of any sinking fund payment when and as due
in respect of any debt security of that series;
o default in the performance, or breach, of any other material
covenant or warranty by us in the indenture (other than a default
in the performance, or breach, of a covenant or agreement that is
specifically dealt elsewhere in the indenture or that has been
included in the indenture solely for the benefit of a series of
debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice
from the trustee or we and the trustee receive written notice from
the holders of not less than a certain specified percentage in
aggregate principal amount of the then outstanding debt securities
of that series as provided in the indenture;
o any nonpayment or other default is made under any agreement or
instrument relating to any of our other indebtedness and such
default shall have continued after any applicable grace period and
results in that indebtedness becoming due prior to its stated
maturity or occurs at the final maturity of that indebtedness;
o certain events of bankruptcy, insolvency or reorganization; and
o any other event of default provided with respect to debt
securities of that series that is described in the applicable
prospectus supplement accompanying this prospectus.
No event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy, insolvency or
reorganization) necessarily constitutes an event of default with respect to any
other series of debt securities.
If an event of default with respect to debt securities of any series at
the time outstanding occurs and is continuing, then the trustee or the holders
of not less than a certain specified percentage in aggregate principal amount of
the then outstanding debt securities of that series may, by written notice to us
(and to the trustee if given by the holders), declare to be due and payable
immediately the principal (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may be specified in
the terms of that series) of all debt securities of that series.
In the case of an event of default resulting from certain events of
bankruptcy, insolvency or reorganization, the principal of and premium, if any,
and interest of all outstanding debt securities will become and be immediately
due and payable without any declaration or other act by the trustee or any
holder of outstanding debt securities.
At any time after a declaration of acceleration with respect to debt
securities of any series has been made, but before the trustee has obtained a
judgment or decree for payment of the money due, the holders of a majority in
aggregate principal amount of the then outstanding debt securities of that
series may, subject to our having paid or deposited with the trustee a sum
sufficient to pay overdue interest and principal which has become due other than
by acceleration and certain other conditions, rescind and annul such
acceleration if all events of default, other
34
than the nonpayment of accelerated principal and premium with respect to debt
securities of that series, have been cured or waived as provided in the
indenture. For information as to waiver of defaults see the discussion under "--
Amendment, Supplement and Waiver" below. We refer you to the prospectus
supplement relating to any series of debt securities that are discount
securities for the particular provisions relating to acceleration of a portion
of the principal amount of the discount securities upon the occurrence of an
event of default and the continuation of an event of default.
The indenture provides that 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 outstanding debt securities, unless the trustee receives indemnity
satisfactory to it against any cost, liability or expense. Subject to certain
rights of the trustee, the holders of a majority in aggregate principal amount
of the then outstanding debt securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
The indenture provides that the trustee may withhold notice to the
holders of debt securities of any series of any event of default (except in
payment on any debt securities of that series) with respect to debt securities
of that series if it in good faith determines that withholding notice is in the
interest of the holders of those debt securities.
AMENDMENT, SUPPLEMENT AND WAIVER
Without notice to or the consent of any holders, we and the trustee
enter into one or more supplemental indentures for any of the following
purposes:
o to evidence the succession of another entity to us and the
assumption by that successor of our covenants in the indenture and
in the debt securities;
o to add to the covenants for the benefit of the holders of all or
any series of debt securities, and if those covenants are to be
for the benefit of less than all series, stating that those
covenants are expressly being included solely for the benefit of
that series, or to surrender any right or power conferred upon us;
o to add any additional events of default;
o to add or change any of the provisions of the indenture to such
extent as may be necessary to permit or facilitate the issuance of
debt securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in uncertificated form
o subject to certain limitations, to add to, change, or eliminate
any of the provisions of the indenture in respect of any series of
debt securities;
o to establish the form or terms of debt securities of any series as
permitted by the indenture;
35
o to evidence and provide for the acceptance of appointment of a
separate or successor trustee with respect to one or more series
of debt securities and to add to or change any of the provisions
of the indenture as is necessary to provide for or facilitate the
administration of the trusts thereunder by more than one trustee;
or
o to cure any ambiguity, to correct or supplement any provision in
the indenture which may be defective or inconsistent with any
other provision in the indenture, or to make any other provisions
with respect to matters or questions arising under the indenture,
provided that such action does not adversely affect the interests
of the holders of the debt securities of any series in any
material respect.
We and the trustee may, with some exceptions, amend or modify any
indenture with the consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of all series affected by
the amendment or modification. However, no amendment or modification may,
without the consent of the holder of each outstanding debt security affected
thereby:
o change the stated maturity of the principal of, or any installment
of principal of or interest on, any debt security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount
of the principal of an original issue discount security that would
be due and payable upon a declaration of acceleration of maturity,
or change the coin or currency in which any premium or interest on
any debt security is payable, or impair the right to institute
suit for the enforcement of any payment on or after the stated
maturity (or, in the case of redemption, on or after the
redemption date);
o reduce the percentages of holders whose consent is required for
any modification or waiver; or
o modify certain of the provisions in the indenture relating to
supplemental indentures and waivers of certain covenants and past
defaults.
A modification which changes or eliminates any provision of an
indenture expressly included solely for the benefit of holders of debt
securities of one or more particular series or modifies the holders' rights will
be deemed not to affect the rights under the indenture of the registered holders
of debt securities of any other series.
The indenture provides that the holders of a majority in principal
amount of the outstanding debt securities of any series may on behalf of the
holders of all of the debt securities of that series waive any past default and
its consequences with respect to that series, except:
o a default in the payment of interest on or premium, if any, or the
principal of, any debt security of that series; or
o a default in respect of a covenant or provision of the indenture
which cannot be modified or amended without the consent of the
holder of each outstanding debt security of that series affected.
36
DEFEASANCE OF INDENTURE
Legal Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, we may be
discharged from any and all obligations in respect of the debt securities of any
series (except for certain obligations to register the transfer or exchange of
debt securities of the series, to replace stolen, lost or mutilated debt
securities of the series, and to maintain paying agencies and certain provisions
relating to the treatment of funds held by paying agents).
Covenant Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, upon
compliance with certain conditions we may omit to comply with certain covenants
contained in the indenture, as well as additional covenants contained in a
supplement to the indenture and that certain events of default under the
indenture will not constitute a an event of default with respect to the debt
securities of that series.
In the case of either legal defeasance or covenant defeasance, we will
be so discharged upon the deposit with the trustee, in trust, of money and/or
U.S. Government Obligations that, through the payment of interest and principal
in accordance with their terms, will provide money in an amount sufficient in
the opinion of a nationally recognized firm of independent public accountants to
pay and discharge the principal of and premium and interest on the debt
securities of that series on the stated maturity of such payments in accordance
with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered
to the trustee an officers' certificate and an opinion of counsel stating that
we have received from, or there has been published by, the United States
Internal Revenue Service a ruling or, since the date of execution of the
indenture, there has been a change in the applicable United States federal
income tax law, in either case to the effect that holders of the debt securities
of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and discharge and
will be subject to United States federal income tax on the same amount and in
the same manner and at the same times as would have been the case if the
deposit, defeasance and discharge had not occurred.
CONSOLIDATION, MERGER, SALE OR TRANSFER
We may not consolidate with or merge with or into any other person or
transfer all or substantially all of our properties and assets to any person
unless, among other things:
o either:
o we are the surviving or continuing corporation; or
o the person (if other than us) formed by such consolidation or
into which we are merged or the person which all or
substantially all of our properties and assets are
transferred is a corporation duly organized and validly
existing under the laws of the United States, any state
thereof or the District of Columbia and expressly assumes, by
a supplemental indenture all of our obligations under the
debt securities and the indenture; and
37
o immediately after the transaction and the incurrence or
anticipated incurrence of any indebtedness to be incurred in
connection with the transaction, no default will exist.
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 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
38
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.
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
39
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 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;
40
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:
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; 3.50 to 1.00
March 31, 2003;
June 30, 2003; and
September 30, 2003
------------------------------------------------------------------
December 31, 2003;
March 31, 2004; 3.25 to 1.00
June 30, 2004; and
September 30, 2004
------------------------------------------------------------------
December 31, 2004 and thereafter 3.00 to 1.00
------------------------------------------------------------------
41
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
------------------------------------------------------------------
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
42
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 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
43
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 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
44
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.
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
45
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 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.
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
46
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.
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.
47
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
48
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
49
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.
50
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.
51
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 Corporation'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 Corporation'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
Corporation's Definitive Proxy Statement, filed with the Commission on
November 26, 2001 and incorporated herein by reference).
4.1 Indenture, dated as of January 29, 2003, between Jarden Corporation and
The Bank of New York. (2)
4.2 Form of Debt Security. (3)
5.1 Opinion of Kane Kessler, P.C. (2)
5.2 Opinion of Ice Miller. (2)
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (1)
23.1 Consent of Ernst & Young LLP. (2)
23.2 Consent of Kane Kessler, P.C. (Included in Exhibit 5.1). (2)
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) Incorporated by reference to the Form S-3 filed by Jarden Corporation on
January 7, 2003.
(2) Filed herewith.
(3) To be filed by amendment or by a report on Form 8-K pursuant to Item 601(b)
of Regulation S-K.
52
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
53
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.
54
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 29, 2003.
JARDEN CORPORATION
By: /s/ Ian G.H. Ashken
-----------------------
Name: Ian G.H. Ashken
Title: Vice Chairman, Chief Financial
Officer, and Secretary
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
---- ----- ----
* Chairman and Chief Executive January 29, 2003
- ------------------------- Officer (Principal Executive
Martin E. Franklin Officer)
/s/ Ian G.H. Ashken Vice Chairman, Chief Financial January 29, 2003
- ------------------------- Officer and Secretary (Principal
Ian G. H. Ashken Financial Officer and Principal
Accounting Officer)
* Director January 29, 2003
- -------------------------
Rene-Pierre Azria
* Director January 29, 2003
- -------------------------
Douglas W. Huemme
* Director January 29, 2003
- -------------------------
Richard L. Molen
* Director January 29, 2003
- -------------------------
Lynda W. Popwell
* Director January 29, 2003
- -------------------------
Irwin D. Simon
* Director January 29, 2003
- -------------------------
Robert L. Wood
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 2003.
ALLTRISTA NEWCO CORPORATION
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
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
---- ----- ----
* Director and President January 29, 2003
- -------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, and January 29, 2003
- ------------------------- Treasurer
Ian G. H. Ashken
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 2003.
ALLTRISTA PLASTICS CORPORATION
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
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
---- ----- ----
* Director and President January 29, 2003
- -------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, January 29, 2003
- ------------------------- and Treasurer
Ian G. H. Ashken
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 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
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 29, 2003
- ------------------------- Alltrista Newco Corporation, the
Ian G. H. Ashken general partner of Alltrista Zinc
Products, L.P.
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 29, 2003.
HEARTHMARK, INC.
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
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
---- ----- ----
* Director and President January 29, 2003
- -------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, January 29, 2003
- ------------------------- and Treasurer
Ian G. H. Ashken
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 2003.
QUOIN CORPORATION
By: /s/ Ian G.H. Ashken
-----------------------
Name: Ian G.H. Ashken
Title: Treasurer
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
---- ----- ----
* Director and President January 29, 2003
- -------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director and Treasurer January 29, 2003
- -------------------------
Ian G. H. Ashken
*By: /s/ Ian G.H. Ashken
--------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 2003.
TILIA, INC.
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
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
---- ----- ----
* Director and Vice President January 29, 2003
- ------------------------
Martin E. Franklin
* Director and Vice President January 29, 2003
- ------------------------
Desiree DeStefano
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 2003.
TILIA DIRECT, INC.
By: /s/ Ian G.H. Ashken
------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
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, January 29, 2003
- ------------------------- and Treasurer
Ian G. H. Ashken
* Director January 29, 2003
- -------------------------
J. David Tolbert
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 29, 2003.
TILIA INTERNATIONAL, INC.
By: /s/ Ian G.H. Ashken
--------------------------------
Name: Ian G.H. Ashken
Title: Treasurer and Secretary
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
---- ----- ----
* Director and Vice President January 29, 2003
- -------------------------
Martin E. Franklin
/s/ Ian G.H. Ashken Director, Secretary, January 29, 2003
- ------------------------- and Treasurer
Ian G. H. Ashken
* By: /s/ Ian G.H. Ashken
-------------------
Ian G.H. Ashken
as Attorney-in-fact
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 Corporation'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 Corporation'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
Corporation's Definitive Proxy Statement, filed with the Commission on
November 26, 2001 and incorporated herein by reference).
4.1 Indenture, dated as of January 29, 2003, between Jarden Corporation and
The Bank of New York. (2)
4.2 Form of Debt Security. (3)
5.1 Opinion of Kane Kessler, P.C. (2)
5.2 Opinion of Ice Miller. (2)
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (1)
23.1 Consent of Ernst & Young LLP. (2)
23.2 Consent of Kane Kessler, P.C. (Included in Exhibit 5.1). (2)
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) Incorporated by reference to the Form S-3 filed by Jarden Corporation on
January 7, 2003.
(2) Filed herewith.
(3) To be filed by amendment or by a report on Form 8-K pursuant to Item 601(b)
of Regulation S-K.