-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IKL9K9u3qBcOGm7FOVLpyCq62IAI0aV6izBxPfT6oMMHnURl4yd6TpvLTQK4f6sU uIrIbkPGmoud/CdE4cj7BA== 0000950152-95-002286.txt : 19951011 0000950152-95-002286.hdr.sgml : 19951011 ACCESSION NUMBER: 0000950152-95-002286 CONFORMED SUBMISSION TYPE: S-2/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951010 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WAXMAN INDUSTRIES INC CENTRAL INDEX KEY: 0000105096 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-HARDWARE & PLUMBING & HEATING EQUIPMENT & SUPPLIES [5070] IRS NUMBER: 340899894 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-2/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-54211 FILM NUMBER: 95579547 BUSINESS ADDRESS: STREET 1: 24460 AURORA RD CITY: BEDFORD HEIGHTS STATE: OH ZIP: 44146 BUSINESS PHONE: 2164391830 MAIL ADDRESS: STREET 1: 24460 AURORA ROAD CITY: BEDFORD HEIGHTS STATE: OH ZIP: 44146 S-2/A 1 WAXMAN S-2/A 1 As filed with the Securities and Exchange Commission on October 10, 1995 Registration No. 33-54211 ================================================================================ SECURITIES AND EXCHANGE COMMISSION ---------------- AMENDMENT NO. 4 ON FORM S-2 TO REGISTRATION STATEMENT ON FORM S-1 UNDER THE SECURITIES ACT OF 1933 ---------------- WAXMAN INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 5074 (Primary Standard Industrial Classification Code Number) 34-0899894 (I.R.S. Employer Identification Number) 24460 Aurora Road Bedford Heights, Ohio 44146 (216) 439-1830 (Address, including zip code, and telephone number, including area code, of registrant's principal offices) ---------- ARMOND WAXMAN 24460 Aurora Road Bedford Heights, Ohio 44146 (216) 439-1830 (Name, address, including zip code, and telephone number, including area code, of agents for service) ---------- Copies to: SCOTT M. ZIMMERMAN, ESQ. Shereff, Friedman, Hoffman & Goodman, LLP 919 Third Avenue New York, New York 10022 (212) 758-9500 ---------- APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE TO THE PUBLIC: As soon as practicable after this registration statement becomes effective. 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, check the following box: /X/ The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant 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 Commission acting pursuant to said section 8(a), may determine. ---------- 2 WAXMAN INDUSTRIES, INC. CROSS REFERENCE SHEET PURSUANT TO ITEM 501(B) OF REGULATION S-K
ITEM OF FORM S-2 PROSPECTUS CAPTION OR LOCATION ---------------- ------------------------------ 1. Forepart of the Registration Statement Outside Front Cover Page of Prospectus and Outside Front Cover Page of Prospectus 2. Inside Front and Outside Back Cover Available Information; Inside Front Cover and Page of Prospectus Outside Back Cover Pages of Prospectus 3. Summary Information, Risk Factors and Prospectus Summary; Incorporation of Certain Ratio of Earnings to Fixed Charges Information by Reference; Risk Factors. 4. Use of Proceeds Inside Front Cover Page of Prospectus; Prospectus Summary; Use of Proceeds 5. Determination of Offering Price Not Applicable 6. Dilution Not Applicable 7. Selling Security Holders Selling Security Holders; Plan of Distribution 8. Plan of Distribution and Underwriting Outside Front Cover Page of Prospectus; Plan of Distribution 9. Description of Securities to be Registered Outside Front Cover Page of Prospectus; Prospectus Summary; Description of Warrants; Description of Capital Stock 10. Interests of Named Experts and Counsel Legal Matters 11. Information with Respect to the Registrant Outside Front Cover Page of Prospectus; Available Information; Incorporation of Certain Information by Reference; Prospectus Summary; Risk Factors 12. Incorporation of Certain Information by Available Information; Incorporation of Certain Reference Information by Reference 13. Disclosure on Commission Position on Indemnification of Securities Act Liabilities Not Applicable
i 3 SUBJECT TO COMPLETION, DATED OCTOBER 10, 1995 PROSPECTUS WAXMAN INDUSTRIES, INC. 2,950,000 WARRANTS TO PURCHASE SHARES OF COMMON STOCK 2,950,000 SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE This Prospectus relates to the offer and sale of 2,950,000 warrants ("Warrants") to purchase shares of common stock, par value $.01 per share (the "Common Stock"), of Waxman Industries, Inc. (the "Company") and the 2,950,000 shares of Common Stock, subject to adjustment, issuable upon exercise of the Warrants. The Warrants and shares of Common Stock referenced above offered hereby are sometimes collectively referred to herein as the "Securities." The Securities will be sold by the holders thereof (the "Selling Security Holders"). See "Selling Security Holders." On May 20, 1994, the Company issued Series A 12 3/4% Senior Secured Deferred Coupon Notes Due 2004 having an initial accredited value of $50,000,000 (the "Notes") together with the Warrants in exchange for $50,000,000 aggregate principal amount of the Company's then outstanding 13 3/4% Senior Subordinated Notes due June 1, 1999 (the "Senior Subordinated Notes") pursuant to a private exchange offer (the "Private Exchange Offer") which was a part of a series of interrelated transactions (the "Reorganization"). In addition to the Private Exchange Offer, the components of the Reorganization included (i) the solicitation of the consents of the holders of the Company's 12.25% Fixed Rate Senior Secured Notes due September 1, 1998 and Floating Rate Senior Secured Notes due September 1, 1998 to certain waivers of and the adoption of certain amendments to the indenture governing such Senior Secured Notes, (ii) the establishment of a $55 million revolving credit facility and a $15 million term loan, (iii) the solicitation of the consents of the holders of the Company's Senior Subordinated Notes to certain waivers of and the adoption of certain amendments to the indenture governing the Senior Subordinated Notes and (iv) the repayment of the borrowings under the Company's then existing domestic revolving credit facilities. Each Warrant entitles the holder thereof to purchase one share of Common Stock, subject to adjustment in certain circumstances discussed below, at a cash exercise price of $2.45 per share, subject to adjustment in certain circumstances discussed below. The Company would receive all of the proceeds from the exercise of the Warrants. The Warrants are currently exercisable and expire on June 1, 2004. The Warrants were originally issued by the Company in a private placement to certain institutional investors. There is presently no active trading market for the Warrants and there can be no assurance that one will develop. The Common Stock is traded on the New York Stock Exchange, Inc. (the "NYSE") under the symbol "WAX." On October 5, 1995, the last reported sales price per share of Common Stock, as reported by the NYSE, was $1 3/8 The Securities are being offered for the accounts of the Selling Security Holders. See "Selling Security Holders." The offer and sale of the Securities is being registered under the Registration Statement of which this Prospectus forms a part in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement (the "Equity Registration Rights Agreement"), dated as of May 20, 1994, between the Company and The Huntington National Bank, as Warrant Agent (the "Warrant Agent") under the Warrant Agreement dated as of May 20, 1994 between such Warrant Agent and the Company, on behalf of the original purchasers of the Warrants. The Company has agreed to pay all expenses of this offering but will not receive any of the proceeds from the sale of Securities being offered hereby. The aggregate proceeds to the Selling Security Holders from the sale of the Securities will be the purchase price of the Securities sold, less the aggregate underwriting fees, discounts and commissions, if any. See "Plan of Distribution." The Selling Security Holders directly, through agents designated from time to time or through dealers or underwriters also to be designated, may sell the Securities from time to time on terms to be determined at the time of sale. To the extent required, the specific Securities to be sold, the names of the Selling Security Holders, the purchase price, the public offering price, the names of any such agents, dealers or underwriters and any applicable commissions or discount with respect to a particular offer will be set forth in an accompanying Prospectus supplement (or, if required, a post-effective amendment to the Registration Statement of which this Prospectus forms a part). The distribution of the Securities of the Selling Security Holders may be effected in one or more transactions that may take place on the NYSE or the over- 4 the-counter market, including ordinary broker's transactions, privately negotiated transactions or through sales to one or more dealers for resale of such securities as principals, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. Usual and customary or specifically negotiated brokerage fees, commissions or discounts may be paid by the Selling Security Holders in connection with such sales. The Selling Security Holders and any broker-dealers, agents or underwriters that participate with the Selling Security Holders in the distribution of the Securities may be deemed to be "Underwriters" within the meaning of the Securities Act of 1933, as amended (the "Act"), and any commissions received by them and any profit on the resale of the Securities purchased by them may be deemed to be underwriting commissions or discounts under the Act. See "Plan of Distribution" for indemnification arrangements." PROSPECTIVE PURCHASERS OF THE SECURITIES OFFERED HEREBY SHOULD CAREFULLY CONSIDER THE MATTERS SET FORTH UNDER "RISK FACTORS." ----------------------------------------- THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SECURITIES HAVE NOT BEEN AND WILL NOT BE QUALIFIED FOR SALE UNDER THE SECURITIES LAWS OF CANADA OR ANY PROVINCE OR TERRITORY OF CANADA. THE SECURITIES ARE NOT BEING OFFERED FOR SALE AND MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN CANADA, OR TO ANY RESIDENT THEREOF, IN VIOLATION OF THE SECURITIES LAWS OF CANADA OR ANY PROVINCE OR TERRITORY OF CANADA. THIS DOCUMENT MAY NOT BE PASSED ON IN THE UNITED KINGDOM TO ANY PERSON UNLESS THAT PERSON IS OF A KIND DESCRIBED IN ARTICLE 9(3) OF THE FINANCIAL SERVICES ACT 1986 (INVESTMENT ADVERTISEMENTS) (EXEMPTIONS) ORDER 1988 OR IS A PERSON TO WHOM THIS DOCUMENT MAY OTHERWISE LAWFULLY BE ISSUED OR PASSED ON. NOTICE TO NEW HAMPSHIRE RESIDENTS NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER CHAPTER 421-B WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT FILED UNDER CHAPTER 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH. ----------------------------------------- THE DATE OF THIS PROSPECTUS IS _________, 1995 2 5 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files periodic reports, proxy statements and other information with the Commission. The Registration Statement, as well as such periodic reports, proxy statements and other information, can be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; Suite 1400, Northwest Atrium Center, 500 West Madison Street, Chicago, Illinois 60661; and 7 World Trade Center, New York, New York 10048. Copies of such material can also be obtained from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Company's common stock is listed on the NYSE. Reports, proxy statements and other information may also be inspected at the offices of the NYSE, 20 Broad Street, New York, New York 10005. The Company has filed a Registration Statement on Form S-2 (together with all amendments thereto referred to herein as the "Registration Statement") under the Act, with the Commission covering the securities being offered by this Prospectus. This Prospectus does not contain all the information set forth or incorporated by reference in the Registration Statement and the exhibits and schedules relating thereto, certain portions of which have been omitted as permitted by the rules and regulations of the Commission. For further information with respect to the Company and the securities offered by this Prospectus, reference is made to the Registration Statement and the exhibits and schedules thereto which are on file at the offices of the Commission and may be obtained upon payment of the fee prescribed by the Commission, or may be examined without charge at the offices of the Commission. Statements contained in this Prospectus as to the contents of any contract or other documents referred to are not necessarily complete, and are qualified in all respects by such reference. INCORPORATION OF CERTAIN INFORMATION BY REFERENCE The Company hereby incorporates by reference in this Prospectus the Company's Annual Report on Form 10-K for its fiscal year ended June 30, 1995 (the "1995 Annual Report") filed with the Commission (File No.0-5888) pursuant to the 1934 Act. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Securities shall be deemed to be incorporated by reference into this Prospectus and to be 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 other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Any person receiving a copy of this Prospectus may obtain without charge, upon request, a copy of any of the documents incorporated by reference herein, except for the exhibits to such documents. Requests should be directed to Waxman Industries, Inc. 24460 Aurora Road, Bedford Heights, Ohio 44146, Telephone No: (216) 439-1830. 3 6 PROSPECTUS SUMMARY The following summary is qualified in its entirety by reference to, and should be read in conjunction with, the more detailed information and financial statements appearing elsewhere in this Prospectus. References in this Prospectus to a particular fiscal year refer to the 12-month period ended on June 30 in that year. Unless the context otherwise indicates, all references to the "Company" are to the continuing operations of Waxman Industries, Inc. and its subsidiaries and divisions and to the business conducted through such subsidiaries and divisions and exclude the operations of Waxman Consumer Products Group Inc. ("Consumer Products"). As a result of the Company's recent determination to sell its Consumer Products business, Consumer Products is reported as a discontinued operation and the consolidated financial statements and financial information incorporated by reference herein have been reclassified to report separately Consumer Products' net assets and results of operations. See "Recent Developments." THE COMPANY The Company believes it is one of the leading suppliers of plumbing products to the repair and remodeling market in the United States. The Company distributes plumbing, electrical and hardware products to over 49,000 customers in the United States, including plumbing and electrical repair and remodeling contractors and independent retailers. The Company's consolidated net sales were $156.0 million in fiscal 1995. The Company's business is conducted primarily through its wholly-owned subsidiary, Barnett Inc. ("Barnett"). Barnett is a national mail order and telemarketing business which markets an extensive line of over 9,200 plumbing, electrical and hardware products to over 35,000 active customers. Through its nationwide network of warehouses, Barnett provides its customers with a single source for an extensive line of competitively priced quality products. The Company's strategy of being a low-cost supplier is facilitated by its purchase of a significant portion of its products from foreign sources. Based on management's experience and knowledge of the industry, the Company believes that Barnett is the only national competitor in this business. Due to its size, purchasing power and foreign sourcing capabilities, Barnett has a number of distinct competitive advantages including (i) the ability to offer prices generally lower than those of its regional competition, (ii) the ability to offer higher margin private label products which offer customers a low cost alternative to name-brand products, and (iii), in virtually all cases, 24-hour order turnaround. Barnett's marketing strategy is comprised of frequent catalog and promotional mailings, supported by a 24-hour telemarketing operation. Barnett has averaged 15% net sales growth per annum during the period from fiscal 1991 to fiscal 1995 through (i) the enhancement and expansion of its telemarketing operation, (ii) increased market penetration with the expansion of its warehouse network, (iii) the introduction of new product offerings and (iv) the introduction of two additional catalogs, each targeted at a distinct customer base. Barnett's net sales for fiscal 1995 were $109.1 million. The Company also has several other smaller operations which are conducted through its other subsidiaries, WOC Inc. ("WOC") and TWI, International, Inc. ("TWI"). WOC includes four operations, the largest of which are U.S. Lock ("U.S. Lock") --a distributor of a full line of security hardware products, and LeRan Copper & Brass ("LeRan") --a supplier of copper tubing, brass fittings and other related products. TWI includes the foreign sourcing operations which support Barnett, Consumer Products and WOC. Net sales from these other operations were $46.9 million in fiscal 1995. RECENT DEVELOPMENTS In June 1995, William R. Pray was promoted to President and Chief Operating Officer of the Company. In his new position, Mr. Pray assumed overall responsibility for all of the Company's operations. In addition, Mr. Pray was elected as a director of the Company, filling a newly created seat which resulted from the expansion of Waxman Industries' Board of Directors from five to six members. Mr. Pray has served as president of Barnett since 1987. In August 1995, the Company announced that it has decided to sell its Consumer Products business in order to enhance its capital structure and allow the Company to focus on its fast growing Barnett mail order and telemarketing business. Consumer Products markets, sells and distributes approximately 9,400 products to a wide variety of retailers, primarily Do-It-Yourself ("D-I-Y") warehouse home centers, home improvement centers and mass merchandisers such as Builders Square, Home Depot, Kmart, Sears and Wal-Mart. Consumer Products works closely with its customers to develop innovative and comprehensive marketing and merchandising programs designed to improve their profitability, 4 7 efficiently manage shelf space, reduce inventory levels and maximize floor stock turnover. Consumer Products' net sales were $72.0 million in fiscal 1995. The Company anticipates that the proceeds from any such sale will be used, in part, to retire the Notes thereby eliminating the mandatory sinking fund requirements relating to the Notes which are scheduled to commence in September 1996. The Company retained Merrill Lynch & Co. as its financial advisor in connection with the sale. In furtherance of its decision to sell the Consumer Products business, the Company entered into a letter of intent which contemplates the sale of 75% of Consumer Products, together with certain supporting operations, to a group consisting of HIG Capital Management of Miami, Florida along with certain members of Consumer Products' existing management team for an aggregate cash purchase price of $50 million plus other consideration which will give the Company a 25% economic interest in Consumer Products on a going forward basis. The Company expects that it will account for any remaining interest under the cost method as the interest it will retain will not allow it to exercise significant influence over Consumer Products in the future. Such letter of intent, however, contains certain contingencies including a financing contingency. In connection with such sale, the Company intends to repay the portion of its revolving credit facility and term loan which relates to Consumer Products and refinance the remaining balances using proceeds from a new secured credit facility. The Company expects that any such new secured credit facility will improve liquidity through greater working capital availability. Accordingly, Consumer Products is reported as a discontinued operation and the consolidated financial statements and financial information incorporated by reference herein have been reclassified to report separately Consumer Products' net assets and results of operations. Prior period consolidated financial statements and financial information have been reclassified to conform to the current period presentation. During the fourth quarter of fiscal 1995, the Company recorded a $11.0 million charge which represents the expected loss to be incurred upon completion of the sale of the Consumer Products business. See "Incorporation of Certain Information by Reference" and the 1995 Annual Report for additional information regarding the business, financial condition and results of operations of Consumer Products. The Company also announced that it named Andrea Luiga to the position of Vice President-Finance and Chief Financial Officer. Ms. Luiga replaced Neal R. Restivo, formerly Senior Vice President and Chief Financial Officer of the Company who submitted his resignation effective September 30, 1995 to pursue another opportunity. Ms. Luiga was, and remains, Vice President, Controller of Barnett and has been with Barnett since 1987. As part of its efforts to decrease its leverage and increase its financial flexibility, Waxman USA currently intends to offer to exchange for $48.75 million principal amount of the Company's outstanding 13 3/4% Senior Subordinated Notes due 1999 (the "Senior Subordinated Notes"), a like principal amount of Waxman USA Senior Secured Notes due 2001 (the "Exchange Securities') and in connection therewith to solicit consent to certain amendments to the Indenture pursuant to which the Senior Subordinated Notes were issued. Although the terms of the exchange offer have not been finalized, the Company expects that the Exchange Offer, if consummated, will decrease the Company's cash interest burden and will extend the maturity of the Senior Subordinated Note issue by several years. A registration statement with respect to the Exchange Securities has been filed with the Commission but has not yet become effective. The Exchange Securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This Prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Exchange Securities from any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any state. BACKGROUND OF EXCHANGE OFFER; RECENT SECURITIES OFFERING AND RELATED MATTERS On May 20, 1994, the Company issued Series A 12 3/4% Senior Secured Deferred Coupon Notes Due 2004 having an initial accreted value of $50 million (the "Deferred Coupon Notes") together with the Warrants to purchase 2.9 million shares of Common Stock in exchange for $50 million aggregate principal amount of the Company's outstanding 13 3/4% Senior Subordinated Notes due June 1, 1999 (the "Senior Subordinated Notes") pursuant to a private exchange offer (the "Private Exchange Offer") which was a part of a series of interrelated transactions (the "Reorganization"). In addition to the Private Exchange Offer, the components of the Reorganization included (i) the solicitation of the consents of the holders of the Company's Senior Subordinated Notes to certain waivers of and the adoption of certain amendments to the indenture 5 8 governing the Senior Subordinated Notes (the "Senior Subordinated Consent Solicitation"), (ii) the establishment of a $55 million revolving credit facility (the "Domestic Credit Facility") and a $15 million term loan (the "Domestic Term Loan"; and together with the Domestic Credit Facility, the "Debt Financing"), (iii) the solicitation of the consents of the holders of the Company's 12.25% Fixed Rate Senior Secured Notes due September 1, 1998 and Floating Rate Senior Secured Notes due September 1, 1998 (together, the "Senior Secured Notes") to certain waivers of and the adoption of certain amendments to the indenture governing the Senior Secured Notes (the "12 1/4% Consent Solicitation") and (iv) the repayment of the borrowings under the Company's then existing domestic revolving credit facilities (including $27.6 under the Company's then existing working capital credit facility and $1.2 million under the $5.0 million revolving credit facility of Barnett (the "Barnett Financing")). During fiscal 1994, the Company restructured (the "Corporate Restructuring") its domestic operations such that the Company is now a holding company whose only material assets are the capital stock of its subsidiaries. As part of the Corporate Restructuring, the Company formed (a) Waxman USA Inc. ("Waxman USA"), as a holding company for the subsidiaries that comprise and support the Company's domestic operations, (b) Consumer Products, a wholly owned subsidiary of Waxman USA, to own and operate Consumer Products Group Division, and (c) WOC, a wholly owned subsidiary of Waxman USA, to own and operate Waxman USA's domestic subsidiaries, other than Barnett and Consumer Products. On May 20, 1994, the Company completed the Corporate Restructuring by (i) contributing the capital stock of Barnett to Waxman USA, (ii) contributing the assets and liabilities of the Consumer Products Division to Consumer Products, (iii) contributing the assets and liabilities of its Madison Equipment Division to WOC, (iv) contributing the assets and liabilities of its Medal Distributing Division to WOC, (v) merging U.S. Lock and LeRan, each a wholly owned subsidiary of the Company, into WOC, (vi) contributing the capital stock of TWI to Waxman USA and (vii) contributing the capital stock of Western American Manufacturing, Inc. ("WAMI") to TWI. 6 9 As a result of the Corporate Restructuring, the corporate structure of the Company and its subsidiaries is as follows: - -------------------------------------------------------------------------------- WAXMAN INDUSTRIES, INC. - -------------------------------------------------------------------------------- | --------------------------------------- WAXMAN USA INC. --------------------------------------- | | | ------------------------------------------------------ | | | | ------------- ---------- -------- ----------------------- BARNETT INC. WAXMAN WOC INC. TWI, INTERNATIONAL INC. CONSUMER PRODUCTS GROUP INC. ------------- ---------- -------- ----------------------- | ------------ | | ------------- ---------------- TWI, WESTERN AMERICAN INTERNATIONAL MANUFACTURING, TAIWAN, INC. INC. ------------- ---------------- | | ------------- ---------------- CWI COHART DE MEXICO INTERNATIONAL SA DE CV CHINA, LTD. ------------- ---------------- - ---------------------- Each subsidiary depicted above is a wholly owned subsidiary, except for TWI International Taiwan, Inc. and Cohart de Mexico SA de CV, which are 99% owned. 7 10 The Warrants were issued pursuant to exemptions from, or transactions not subject to, the registration requirements of the Act and applicable state securities laws. The Company structured the offering of the Warrants and Notes as a private placement in order to consummate such offering on a more expeditious basis than would have been possible had the offering and sale been registered under the Act. The original purchasers of the Warrants, as a condition to their purchase of the Warrants and Notes, required the Company to enter into the Equity Registration Rights Agreement pursuant to which the Company agreed, among other things, to file promptly a registration statement under the Act to permit such original purchasers to offer and sell under the Act the Warrants and shares of Common Stock issuable upon exercise of the Warrants. The Company prepared and filed the Registration Statement of which this Prospectus forms a part with the Commission pursuant to the Equity Registration Rights Agreement. The original purchasers of the Notes, as a condition to their purchase of the Notes and Warrants, also required the Company to enter into a registration rights agreement pursuant to which the Company agreed, among other things, to promptly commence the Exchange Offer (as defined herein) following the offering of the Notes. The Company prepared and filed a Registration Statement with the Commission pursuant to such registration rights agreement. See "Plan of Distribution." See "Selling Security Holders" and "Plan of Distribution" for a discussion of the offering of the Warrants, the agreements referred to above and additional related agreements. See "Description of the Warrants" for a discussion of the terms of the Warrants. THE OFFERING Securities Offered .................... 2,950,000 Warrants to purchase shares of Common Stock. In addition, this Prospectus relates to the 2,950,000 shares of Common Stock issuable upon exercise of the Warrants, subject to adjustment in the event of any recapitalization, reclassification, stock dividend, stock split, reverse stock split, stock issuance below fair market value or other similar transaction. Warrants Underlying Common Stock ...... Each Warrant is exercisable to purchase one share of Common Stock subject to adjustment under certain circumstances. See "Description of Warrants." Exercise Price ............... $2.45 per share, subject to adjustment in certain circumstances. See "Description of Warrants." Exercise Period .............. The Warrants are currently exercisable. See "Description of Warrants." Expiration Date .............. The Warrants expire at 5:00 p.m. New York City time on June 1, 2004. Warrant Agent ................ The Huntington National Bank is serving as Warrant Agent under the Warrant Agreement. 8 11 Common Stock Number of Shares.............. 2,950,000 shares, subject to adjustment in certain circumstances, of Common Stock issuable upon the exercise of the Warrants. Common Stock Outstanding...... 11,712,162 shares as of September 22, 1995 (including 9,497,083 shares of Common Stock and 2,215,079 shares of Class B Common Stock). NYSE symbol for the Common Stock.............. WAX Proceeds of the Offering............... All of the proceeds from the sale of Securities offered hereby will be received by the Selling Security Holders. The Company will not receive any of the proceeds from this offering. If all of the 2,950,000 Warrants offered hereby are exercised at the initial exercise price of $2.45 per share, the Company would receive $7,227,500, which would be added to the Company's working capital and used for general corporate purposes. For more complete information regarding the Warrants, see "Description of Warrants." RISK FACTORS Prospective purchasers of Securities offered hereby should carefully consider the matters set forth under "Risk Factors," as well as the other information and data included in this Prospectus. 9 12 RISK FACTORS Prospective purchasers of Securities offered hereby should carefully read the entire Prospectus and, in particular, should consider, among other things, the following risks. LEVERAGE The Company has a high degree of leverage. At June 30, 1995, the outstanding consolidated indebtedness (excluding trade payables and accrued liabilities) of the Company's continuing operations was approximately $201 million. This high degree of leverage may have important consequences, including the following: (i) the ability of the Company to obtain additional financing in the future for working capital, capital expenditures, debt service requirements or other purposes may be impaired; (ii) a substantial portion of the Company's cash flow from operations will be required to satisfy debt service obligations; (iii) the Company may be more highly leveraged than companies with which it competes, which may place it at a competitive disadvantage; and (iv) the Company's high degree of leverage may make it more vulnerable in the event of a downturn in its business and may limit its ability to capitalize on business opportunities. Although the Company believes that its operating cash flow as well as amounts available under the Domestic Credit Facility will be sufficient to fund working capital, capital expenditures and debt service requirements for the next 12 months, the Company's ability to satisfy its obligations will be dependent upon its future performance, which is subject to prevailing economic conditions and financial, business and other factors, including factors beyond the Company's control. Commencing March 1995, the Company has been required to make quarterly principal payments of $1.0 million under its Domestic Term Loan. In addition, the Company is required to make mandatory sinking fund payments of $17.0 million on each of September 1, 1996 and September 1, 1997 with respect to the Senior Secured Notes and a single payment of $8.8 million on June 1, 1998 with respect to the Senior Subordinated Notes. In addition, the Debt Financing matures on May 20, 1997, subject to extension in certain circumstances. The Company currently believes that it must obtain a significant infusion of funds, either through additional debt refinancing transactions or the sale of equity and/or assets before any significant deleveraging can occur. However, there can be no assurances as to the timing or likelihood of such deleveraging. See "Recent Developments" and the 1995 Annual Report for a discussion of the Company's plan to sell Consumer Products and the Company's intention to use the net proceeds therefrom to retire its $39.2 million of Senior Secured Notes, thereby eliminating the mandatory sinking fund requirements relating to the Senior Secured Notes which are scheduled to commence in September 1996, and to repay a portion of its revolving credit facility and Domestic Term Loan. To the Company's knowledge, its high degree of leverage has not resulted in the refusal by any of its customers, suppliers or manufacturers to do business with the Company or in the alteration of material terms which have had a material impact on the Company's business. RESTRICTIONS IMPOSED BY TERMS OF INDEBTEDNESS The terms and conditions of the instruments evidencing the Debt Financing, as well as other indebtedness of the Company, impose restrictions that affect, among other things, the ability of the Company and/or its subsidiaries to incur debt, pay dividends, make acquisitions, create liens, sell assets and make certain investments. The breach of any of the foregoing covenants would result in a default under the applicable debt instrument permitting the holders of indebtedness outstanding thereunder, subject to applicable grace periods, to accelerate such indebtedness. There can be no assurance that the Company would have sufficient funds to repay or assets to satisfy such obligations. 10 13 CONTROL BY PRINCIPAL STOCKHOLDERS; CERTAIN ANTI-TAKEOVER EFFECTS Approximately 16.3% (and 12.4%, assuming the exercise of all of the Warrants offered hereby) of the outstanding shares of the Company's common stock, par value $.01 per share, and 80.3% of the outstanding shares of the Company's Class B common stock are held by Melvin and Armond Waxman, brothers and respectively, the Co-Chairmen of the Board and Co-Chief Executive Officers (the "Principal Stockholders"). These holdings represent 61.1% (and 55.9%, assuming the exercise of all of the Warrants offered hereby) of the outstanding voting power of the Company. Consequently, the Principal Stockholders have sufficient voting power to elect the entire Board of Directors of the Company and, in general, to determine the outcome of any corporate transaction or other matter submitted to the stockholders for approval, including any merger, consolidation, sale of all or substantially all of the Company's assets or "going private" transactions, and to prevent or cause a change in control of the Company. In addition, certain provisions in the Company's Certificate of Incorporation, By-laws and debt instruments, including the Change of Control provisions in the Indenture governing the Notes, may be deemed to have the effect of discouraging a third party from pursuing a non-negotiated takeover of the Company and preventing certain changes in control. DEFICIENCY OF EARNINGS TO FIXED CHARGES In fiscal 1995, 1994 and 1993, the Company's earnings were insufficient to cover its fixed charges by $8.5 million, $4.0 million and $14.5 million, respectively. The Company's business strategy, described herein and in the 1995 Annual Report, is designed to capitalize on the growth prospects for Barnett and thereby increase earnings. The Company believes that the successful implementation of its business strategy will enable it to reduce or eliminate the deficiency of earnings to fixed charges. However, there can be no assurances regarding when such deficiencies will be reduced or eliminated or that the deficiencies experienced in the past will not reoccur. FOREIGN SOURCING In fiscal 1995, products manufactured outside of the United States accounted for approximately 19.8% of the total product purchases made by the Company's continuing operations. Foreign sourcing involves a number of risks, including the availability of letters of credit, maintenance of quality standards, work stoppages, transportation delays and interruptions, political and economic disruptions, foreign currency fluctuations, expropriation, nationalization, the imposition of tariffs and import and export controls and changes in governmental policies (including United States' policy toward the foreign country where the products are produced), which could have an adverse effect on the Company's business. The occurrence of certain of these factors would delay or prevent the delivery of goods ordered by the Company's customers, and such delay or inability to meet delivery requirements would have an adverse effect on the Company's results of operations and could have an adverse effect on the Company's relationships with its customers. In addition, the loss of a foreign manufacturer could have a short-term adverse effect on the Company's business until alternative supply arrangements were secured. RELIANCE ON KEY CUSTOMERS During fiscal 1995, Kmart and its subsidiaries, Consumer Products' largest customer, accounted for approximately 13.5% of the Company's continuing and discontinued operations' net sales. During the same period, Consumer Products' ten largest customers accounted for approximately 23.5% of the Company's continuing and discontinued operations' net sales. The loss of or a substantial decrease in the business of Consumer Products' largest customers could have a material adverse effect on the Company's continuing and discontinued operations. See "Recent Developments" and the 1995 Annual Report for information regarding the Company's decision to sell Consumer Products. 11 14 PROCEEDS OF THE OFFERING The Company will not receive any of the proceeds of this offering. All of the proceeds of this offering will be received by the Selling Security Holders. ABSENCE OF PUBLIC MARKET At present, the Warrants are owned by a small number of investors and there is no active trading market for the Warrants. If an active trading market does not develop, purchasers of the Warrants may have difficulty liquidating their investment and the Warrants may not be readily accepted as collateral for loans. Accordingly, no assurances can be given as to the price at which holders of the Warrants will be able to sell the Warrants, if at all. The liquidity of and the market prices for the Warrants and Common Stock can be expected to vary with changes in market and economic conditions, the financial condition and prospects of the Company and other factors that generally influence the market prices of securities, including fluctuations in the market for warrants and common stock generally. POSSIBLE FUTURE SALES OF SHARES BY THE SELLING SECURITY HOLDERS Subject to the restrictions described under "Risk Factors -- Shares Eligible for Future Sale" and applicable law, upon the effectiveness of the Registration Statement of which this Prospectus forms a part, the Selling Security Holders could cause the sale of any or all of the Warrants or underlying shares of Common Stock they own. The Selling Security Holders may determine to sell Warrants or the underlying shares of Common Stock from time to time for any reason. Although the Company can make no prediction as to the effect, if any, that sales of Warrants or shares of Common Stock owned by the Selling Security Holders would have on the market price of Common Stock prevailing from time to time, sales of substantial amounts of Warrants or Common Stock, or the availability of such Warrants or shares of Common Stock for sale in the public market, could adversely affect prevailing market prices of the Common Stock. SHARES ELIGIBLE FOR FUTURE SALE As of September 30, 1995, there were 9,497,083 shares of Common Stock outstanding and 2,215,079 shares of Class B Common Stock outstanding (convertible into 2,220,705 shares of Common Stock). To the extent such shares are not held by "affiliates" or otherwise subject to restrictions on resale, including those imposed by Section 16(b) of the Exchange Act, the Warrants, and upon exercise of the Warrants, the shares of Common Stock which are issuable upon exercise of the Warrants and offered hereby are eligible for sale in the public market. Although the Company can make no prediction as to the effect, if any, that sales of the Warrants and shares of Common Stock referred to above would have on the market price of the Common Stock prevailing from time to time, sales of a substantial amount of Warrants or Common Stock, or the availability of such Warrants or shares of Common Stock for sale in the public market could adversely affect prevailing market prices of the Common Stock. USE OF PROCEEDS The Company will not receive any of the proceeds from the sale of the Securities offered hereby, all of which will be received by the Selling Security Holders. If all of the 2,950,000 Warrants offered hereby are exercised at the initial exercise price of $2.45 per share, the Company would receive $7,227,500, which would be added to the Company's working capital and used for general corporate purposes. 12 15 FIXED CHARGE COVERAGE RATIO Fiscal 1993, 1994 and 1995 earnings were insufficient to cover fixed charges by $14.5 million, $4.0 million and $8.5 million, respectively. The Company's business strategy, described herein and in the 1995 Annual Report, is designed to capitalize on the growth prospects for Barnett and thereby increase earnings. The Company believes that the successful implementation of its business strategy will enable it to reduce or eliminate the deficiency of earnings to fixed charges. However, there can be no assurances regarding when such deficiencies will be reduced or eliminated or that the deficiencies experienced in the past will not reoccur. 13 16 SELLING SECURITY HOLDERS The following table sets forth certain information with respect to the Securities beneficially owned and offered hereby by each Selling Security Holder.
Name Warrants Owned Warrants Offered ---- -------------- ---------------- American Enterprise Life Insurance Company 2,950 2,950 Citicorp Securities, Inc. 147,500 147,500 Colonial High Yield Securities Fund 59,000 59,000 Executive Investors High Yield Fund 5,900 5,900 First Investors Fund for Income 103,250 103,250 First Investors High Yield Fund 100,300 100,300 IDS Life Insurance Company 143,075 143,075 IDS Life Insurance Company of New York 10,325 10,325 Internationale Nederlanden (U.S.) Finance Corporation 354,000 354,000 Kemper Diversified Income Fund 222,607 222,607 Kemper High Income Trust 55,106 55,106 Kemper High Yield Fund 800,453 800,453 Kemper Investors Fund-High Yield Portfolio 52,274 52,274 Kemper Multi-Market Income Trust 12,154 12,154 KML High Yield Investments N.V. 9,853 9,853 KML II High Yield Investments N.V. 9,853 9,853 MetLife-State Street High Income Fund 236,000 236,000 MetLife-State Street Managed Assets 29,500 29,500 Metropolitan Life Insurance Co. 59,000 59,000 Merrill Lynch Pierce Fenner & Smith Inc. 359,900 359,900 Northstar High Yield Fund 118,000 118,000 T.D. Partners 59,000 59,000 --------- --------- Total 2,950,000 2,950,000
- --------------- The Company is registering, on behalf of each Selling Security Holder, the offer and sale of the number of Warrants set forth opposite such Selling Security Holder's name under the column captioned "Warrants Offered" and the same number of shares of Common Stock, subject to adjustment in certain circumstances, issuable upon 14 17 exercise of the Warrants. As of the date hereof, no Warrants have been exercised to purchase shares of Common Stock. Because the Selling Security Holders may offer all or some part of the Securities pursuant to this Prospectus and because this offering is not being underwritten on a firm commitment basis, no estimate can be given as to the amount of Securities to be offered for sale by the Selling Security Holders nor the amount of Securities that will be held by the Selling Security Holders upon termination of this offering. See "Plan of Distribution." To the extent required, the specific amount of Securities to be sold by the Selling Security Holders in connection with a particular offer will be set forth in an accompanying Prospectus Supplement. DESCRIPTION OF THE WARRANTS The Warrants were issued pursuant to the terms of a Warrant Agreement, dated as of May 20, 1994 (the "Warrant Agreement"), by and between the Company and The Huntington National Bank, as warrant agent (the "Warrant Agent"), on behalf of the original purchasers of the Warrants. The following summary of the material provisions of the Warrant Agreement and the Warrant Certificate attached thereto (the "Warrant Certificate") does not purport to be complete, and where reference is made to particular provisions of the Warrant Agreement or the Warrant Certificate, such provisions, including the definitions of certain terms, are qualified in their entirety by reference to all of the provisions of the Warrant Agreement and Warrant Certificate, which have been filed or incorporated by reference as exhibits to the Registration Statement of which this Prospectus forms a part. The Warrants are currently exercisable. The Warrants will expire June 1, 2004. Upon exercise, each Warrant entitles the holder to receive one Warrant Share at a cash exercise price of $2.45, subject to adjustment in certain circumstances. Holders of the Warrants do not have any of the rights or privileges of the stockholders of the Company, including voting rights to receive dividends, prior to exercise of the Warrants. The Company has reserved out of its authorized but unissued shares a sufficient number of shares of Common Stock for issuance upon exercise of the Warrants. The Common Stock issuable on exercise of the Warrants will be, when issued, fully paid and nonassessable. ANTI-DILUTION The Warrants contain customary anti-dilution provisions, including adjustments in the event of a reclassification, recapitalization, stock dividend, stock split, reverse stock split, stock issuance below fair market value or other similar transaction, and including protections in the event of a transaction in which the Company is not the surviving entity. METHOD OF EXERCISE The Warrants may be exercised by surrendering to the Warrant Agent the Warrant Certificates evidencing such Warrants, with the accompanying form of election to purchase properly completed and executed. Upon surrender of the Warrant Certificates and payment in cash of the exercise price, the Warrant Agent will deliver, or cause to be delivered, to or upon the written order of such holder, certificates representing the Warrant Shares to which such holder is entitled. Warrant Certificates will be issued in registered form only and no service charge shall be made for registration of transfer or exchange upon surrender of any Warrant Certificate at the office of the Warrant Agent maintained for that purpose. The Company may require payment of a sum sufficient to cover any tax or other 15 18 governmental charge that may be imposed in connection with any registration of transfer or exchange of Warrant Certificates. AMENDMENT From time to time, the Company and the Warrant Agent, without the consent of the holders of the Warrants, may amend or supplement the Warrant Agreement for certain purposes, including curing defects or inconsistencies or making any change that does not adversely affect the rights of any holder. Any amendment or supplement to the Warrant Agreement that has an adverse effect on the interests of holders or that affects the anti-dilution provisions contained therein shall require the written consent of registered holders of a majority of the then outstanding Warrants. The consent of each holder of an Warrant affected shall be required for any amendment pursuant to which the number of Warrant Shares which could be acquired upon exercise of Warrants would be decreased or the exercise period for the Warrants would be modified in any manner. DESCRIPTION OF CAPITAL STOCK The authorized capital stock of the Company consists of 2,000,000 shares of Preferred Stock, $.01 par value, 22,000,000 shares of Common Stock, $.01 par value, and 6,000,000 shares of Class B Common Stock, $.01 par value. As of September 30, 1995, no shares of Preferred Stock, 9,497,083 shares of Common Stock and 2,215,079 shares of Class B Common Stock were issued and outstanding. COMMON STOCK AND CLASS B COMMON STOCK Each share of Common Stock entitles the holder to one vote on all matters submitted to the stockholders, including the election of directors, and each share of Class B Common Stock entitles the holder to ten votes on all such matters. Except as set forth below, all actions submitted to a vote of stockholders are voted on by holders of Common Stock and Class B Common Stock voting together as a single class. The holders of Common Stock and Class B Common Stock vote separately as classes with respect to any amendments to the Company's Certificate of Incorporation that alter or change the powers, preferences or special rights of their respective classes of stock so as to affect them adversely, and with respect to such other matters as may require class votes under the Delaware General Corporation Law. Dividends on the Class B Common Stock may not exceed those on the Common Stock. Each share of Common Stock and Class B Common Stock is equal in respect of rights to dividends and other distributions in stock or property of the Company (including distributions upon liquidation of the Company), except that in the case of dividends or other distributions payable on the Common Stock and the Class B Common Stock in shares of such stock, including distributions pursuant to split-ups or divisions of the Common Stock or the Class B Common Stock, only Common Stock will be distributed with respect to Common Stock and only Class B Common Stock will be distributed with respect to Class B Common Stock. In no event will either the Common Stock or the Class B Common Stock be split, divided or combined unless the other is split, divided or combined equally. The Class B Common Stock is not transferable by a holder except to or among such holder's spouse, certain of such holder's relatives and certain trusts established for their benefit. The Class B Common Stock is convertible into Common Stock on a share-for-share basis at any time. If the number of outstanding shares of Class B Common Stock at any time falls below 250,000 (as adjusted for any stock splits, combinations, stock dividends or further issuances of Class B Common Stock), the outstanding shares of Class B Common Stock will automatically be converted into shares of Common Stock. 16 19 The Class B Common Stock may tend to have an anti-takeover effect. Since voting control of the Company is vested primarily in the holders of the Class B Common Stock, the issuance of the Class B Common Stock could render more difficult, or discourage, a hostile merger proposal, a tender offer or a proxy contest, even if such actions were favored by a majority of the holders of Common Stock. As of June 30, 1995, Melvin Waxman and Armond Waxman beneficially owned an aggregate of approximately 80.3% of the outstanding Class B Common Stock and 61.1% of the aggregate outstanding voting power of the Company. The transfer agent and registrar for the Common Stock and Class B Common Stock is National City Bank, Cleveland, Ohio. PREFERRED STOCK The Preferred Stock may be issued from time to time in one or more series, and the Board of Directors is authorized to fix the dividend rights and terms, any conversion rights, any voting rights, any redemption rights and terms (including sinking fund provisions), the rights in the event of liquidation and any other rights, preferences, privileges and restrictions of any series of Preferred Stock, as well as the number of shares constituting such series and the designation thereof. The Preferred Stock, if issued, will rank senior to the Company Common Stock as to dividends and as to liquidation preference. Holders of Preferred Stock will have no preemptive rights. The issuance of shares of Preferred Stock could have an anti-takeover effect under certain circumstances. The issuance of shares of Preferred Stock could enable the Board of Directors to render more difficult or discourage an attempt to obtain control of the Company by means of a merger, tender offer or other business combination transaction directed at the Company by, among other things, placing shares of Preferred Stock with investors who might align themselves with the Board of Directors, issuing new shares to dilute stock ownership of a person or entity seeking control of the Company or creating a class or series of Preferred Stock with voting rights. The issuance of shares of the Preferred Stock as an anti-takeover device might preclude stockholders from taking advantage of a situation which they believed could be favorable to their interests. No shares of Preferred Stock are outstanding, and the Company has no present plans to issue any shares of Preferred Stock. PLAN OF DISTRIBUTION Any or all of the Securities may be sold from time to time to purchasers directly by the Selling Security Holders. Alternatively, the Selling Security Holders may from time to time offer the Securities through underwriters, dealers or agents who may receive compensation in the form of underwriting discounts, concessions or commissions from the Selling Security Holders and/or the purchasers of Securities for whom they may act as agents. The Selling Security Holders and any such underwriters, dealers or agents that participate in the distribution of Securities may be deemed to be underwriters under the Act, and any profit on the sale of the Securities by them and any discounts, commissions or concessions received by them may be deemed to be underwriting discounts and commissions under the Act. The Securities may be sold from time to time in one or more transactions at a fixed offering price, which may be changed, or at varying prices determined at the time of sale or at negotiated prices. The distribution of Securities by the Selling Security Holders may be effected in one or more transactions that may take place on the NYSE or the over-the-counter market, including ordinary broker's transactions, privately-negotiated transactions or through sales to one or more broker-dealers for resale of such shares as principals, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. Usual and customary or specifically negotiated brokerage fees, discounts and commissions may be paid by the Selling Security Holders in connection with such sales of securities. At the time a particular offer of Securities is made, to the extent required, a supplement to this Prospectus will be distributed (or, if required, a post-effective amendment to the Registration Statement of which this Prospectus is a part will be filed) which will identify the specific Securities being offered and set forth the aggregate amount of Securities being offered, the purchase price and the terms of the offering, including the name or names 17 20 of the Selling Security Holders and of any underwriters, dealers or agents, the purchase price paid by any underwriter for Securities purchased from the Selling Security Holders, any discounts, commissions and other items constituting compensation from the Selling Security Holders and/or the Company and any discounts, commissions or concessions allowed or reallowed or paid to dealers, including the proposed selling price to the public. In addition, an underwritten offering will require clearance by the National Association of Securities Dealers, Inc. of the underwriter's compensation arrangements. The Company will not receive any of the proceeds from the sale by the Selling Security Holders of the Securities offered hereby. All of the filing fees and other expenses of this Registration Statement will be borne in full by the Company, other than any underwriting fees, discounts and commissions relating to this offering. Pursuant to the Equity Registration Rights Agreement, the Company will use its best efforts to keep the Registration Statement of which this Prospectus forms a part effective under the Act for a period of three years following the initial effective date of such Registration Statement (or such shorter period as permitted under the Equity Registration Rights Agreement) and the Company will pay substantially all of the expenses incident to the offering and sale of the Securities to the public, other than underwriting fees, discounts and commissions. The Equity Registration Rights Agreement provides for cross-indemnification of the Selling Security Holders and the Company, to the extent permitted by law, for losses, claims, damages, liabilities and expenses arising, under certain circumstances, out of any registration of the Securities. The Equity Registration Rights Agreement also provides that in connection with an underwriting offering, the Company will indemnify the underwriters thereof, their officers and directors and each person who controls such underwriters (within the meaning of the Act) to the same extent as provided with respect to the indemnification of the Selling Security Holders signatory to such agreement, except with respect to information provided by such underwriters specifically for inclusion within the appropriate registration statement. The period beginning on the date the Equity Registration Statement is first declared effective by the Commission and ending on the date which is three years after the expiration of the Warrants or, if earlier, the date on which all Warrants and Warrant Shares have been sold pursuant to the Equity Registration Statement or the date three years after all Warrants have been exercised, is referred to as the "Effectiveness Period." In the event that the Equity Registration Statement is not filed or effective by, or continuously effective through, the dates referred to above or prior to the end of the Effectiveness Period, the Commission shall have issued a stop order suspending the effectiveness of the Equity Registration Statement or the prospectus contained in the Equity Registration Statement, as amended or supplemented, shall (x) not contain current information required by the Securities Act and the rules and regulations promulgated thereunder or (y) contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the Company agreed to pay, or cause to be paid, as liquidated damages and not as a penalty, to each holder of a Warrant or Warrant Share, an amount equal to $0.0025 per week per Warrant or Warrant Share, as the case may be, for each week beginning on such date and ending 90 days thereafter. Such liquidated damages shall be increased by $0.0025 per week per Warrant or Warrant Share, as the case may be, at the beginning of each subsequent 90-day period up to a maximum aggregate amount of $0.01 per week per Warrant or Warrant Share, as the case may be. The Company agreed to pay all expenses incident to the Company's performance of or compliance with the Equity Registration Rights Agreement, including the reasonable fees and expenses of counsel to the original purchasers of the Warrants but excluding any underwriting fees, discounts or commissions attributable to the sale of the Warrants or Warrant Shares. Each of the Company and the Warrant Agent, on behalf of the original purchasers of the Warrants, pursuant to the Equity Registration Rights Agreement, agreed to indemnify the other party, its officers, directors and controlling persons in respect of certain liabilities and expenses arising, under certain circumstances, out of any registration of the Securities pursuant to the Equity Registration Rights Agreement. Under applicable rules and regulations under the Exchange Act, any person engaged in a distribution of the Securities may not simultaneously engage in market making activities with respect to the Securities for a period of two business days prior to the commencement of such distribution. In addition and without limiting the foregoing, the Selling Security Holders will be subject to applicable provisions of the Exchange Act and the rules and 18 21 regulations thereunder, including without limitation Rules 10b-6 and 10b-7, which provisions may limit the timing of purchases and sales of the Securities by the Selling Security Holders. In order to comply with certain states' securities laws, if applicable, the Securities will be sold in such jurisdictions only through registered or licensed brokers or dealers. In certain states the Securities may not be sold unless the Securities have been registered or qualified for sale in such state, or unless an exemption from registration or qualification is available and is obtained. The Warrants originally issued by the Company in the Private Exchange Offer contained legends as to their restricted transferability. In addition, the certificates for Common Stock issuable upon exercise of the Warrants would contain, legends as to their restricted transferability. Upon the effectiveness of the Registration Statement of which this Prospectus forms a part and the transfer of the Securities pursuant thereto, these legends will no longer be necessary, and accordingly, new certificates representing such Securities will be issued to the transferee without any such legends unless otherwise required by law. In addition to sales pursuant to the Registration Statement of which this Prospectus forms a part, the Warrants and the shares of Common Stock issuable upon exercise of the Warrants may be sold in accordance with Rule 144 under the Act. LEGAL MATTERS The legality of the securities covered by this Prospectus has been passed upon by Shereff, Friedman, Hoffman & Goodman, LLP, New York, New York, counsel to the Company. EXPERTS The consolidated financial statements of the Company as of June 30, 1994 and June 30, 1995 and for each of the three years in the period ended June 30, 1995 appearing in the Company's Annual Report and incorporated by reference in this Prospectus and elsewhere in this Registration Statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said reports. Reference is made to said report, which includes an explanatory paragraph with respect to the change in the method of accounting for certain warehousing and catalog costs as discussed in Note 4 to the consolidated financial statements. 19 22 NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE HEREIN, IN CONNECTION WITH THIS OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN 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. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
TABLE OF CONTENTS PAGE Available Information .................................................. 3 Incorporation of Certain Documents by Reference ........................ 3 Prospectus Summary ..................................................... 4 Risk Factors ........................................................... 10 Use of Proceeds ........................................................ 12 Selling Security Holders ............................................... 14 Description of Warrants ................................................ 15 Description of Capital Stock ........................................... 16 Plan of Distribution ................................................... 17 Legal Matters .......................................................... 19 Experts ................................................................ 19
WAXMAN INDUSTRIES, INC. 2,950,000 WARRANTS TO PURCHASE COMMON STOCK _________ 2,950,000 SHARES OF COMMON STOCK PAR VALUE $.01 PER SHARE ______________ PROSPECTUS ______________ __________, 1995 ______________ 23 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following expenses incurred in connection with this Registration Statement will be paid by the Company. The Selling Security Holders will not bear any of such expenses.
Filing Fees - Securities and Exchange Commission $ -- Accounting Fees and Expenses 5,000* Legal Fees and Expenses 15,000* Printing Fees and Expenses 2,500* Miscellaneous Expenses 2,500* ------- Total $25,000*
* Estimated ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Certificate of Incorporation of Waxman Industries, Inc. provides that each person who is a party to or involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she was a director or officer of Waxman Industries, shall be indemnified and held harmless by Waxman Industries to the fullest extent authorized by the Delaware General Corporation Law against all expense, liability and loss reasonably incurred by such person in connection therewith. The Certificate of Incorporation provides that the right to indemnification contained therein is a contract right and includes the right to be paid by Waxman Industries the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that if the Delaware General Corporation Law requires, the payment of such expenses incurred in advance of the final disposition of a proceeding shall be made only upon delivery to Waxman Industries of an undertaking to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified. Waxman Industries maintains directors' and officers' liability insurance covering certain liabilities incurred by the directors and officers of Waxman Industries in connection with the performance of their duties. ITEM 16. EXHIBITS 4.1(1) Indenture, dated as of May 20, 1994, by and between Waxman Industries, Inc. and The Huntington National Bank, as Trustee, with respect to the Senior Secured Deferred Coupon Notes, including the form of Senior Secured Deferred Coupon Notes (Exhibit 4.1 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 4.2(1) Warrant Agreement, dated as of May 20, 1994, by and between Waxman Industries, Inc. and The Huntington National Bank, as Warrant Agent (Exhibit 4.2 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 4.3(1) Warrant Certificate (Exhibit 4.3 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 5.1(1) Opinion of Shereff, Friedman, Hoffman & Goodman, LLP regarding legality (filed as Exhibit 5.1 to this Registration Statement). II-1 24 10.1(1) Lease between Waxman Industries, Inc. as Lessee and Aurora Investment Co. as Lessor dated June 30, 1992 (Exhibit 10.1 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1992, File No. 0-5888, incorporated herein by reference). 10.2(1) Policy Statement (revised as of June 1, 1980) regarding Waxman Industries, Inc.'s Profit Incentive Plan (Exhibit 10(c)-1 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1984, File No. 0-5888, incorporated herein by reference). 10.3(1) Employment Contract dated June 18, 1990 between Barnett Inc. and William R. Pray (Exhibit 10.4 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1991, File No. 0-5888, incorporated herein by reference). 10.4(1) Form of Stock Option Agreement between Waxman Industries, Inc. and its Directors (Exhibit 10.5 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1991, File No. 0-5888, incorporated herein by reference). 10.5(1) Employment Contract dated January 1, 1992 between Waxman Industries, Inc. and John S. Peters (Exhibit 10.6 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1992, File No. 0-5888, incorporated herein by reference). 10.6 Employment Agreement dated November 1, 1994 between Waxman Consumer Products Group Inc. and Laurence Waxman. 10.7(1) Tax Sharing Agreement dated May 20, 1994 among Waxman Industries, Inc., Waxman USA, Barnett Inc., Waxman Consumer Products Group Inc., WOC Inc. and Western American Manufacturing, Inc. (Exhibit 10.6 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.8(1) Intercorporate Agreement dated May 20, 1994 among Waxman Industries, Inc., Waxman USA, Barnett Inc., Waxman Consumer Products Group Inc., WOC Inc. and Western American Manufacturing, Inc. (Exhibit 10.7 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.9(1) Credit Agreement dated as of May 20, 1994 among Waxman USA, Inc., Barnett Inc., Waxman Consumer Products Group Inc. and WOC Inc., the Lenders and Issuers party thereto and Citicorp USA, Inc. as Agent, and certain exhibits thereto (Exhibit 10.8 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.10(1) Term Loan Credit Agreement dated as of May 20, 1994 among Waxman USA, Inc., Barnett Inc., Waxman Consumer Products Group Inc. and WOC Inc., the Lenders and Issuers party thereto and Citibank, N.A., as Agent (Exhibit 10.9 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.11 Amendment No. 2 to the Term Loan Agreement and Amendment No. 1 to the Revolving Credit Agreement among Waxman USA, Inc., Barnett Inc., Waxman Consumer Products Group Inc. and WOC Inc., the Lenders and Issuers party thereto and Citibank, N.A., as Agent. 12.1(1) Statement re: computation of ratio (Exhibit 12.1 to Waxman Industries Inc.'s Form S-1 filed July 18, 1995, incorporated herein by reference). II-2 25 13.1(1) Waxman Industries, Inc.'s Annual Report on Form 10-K for its fiscal year ended June 30, 1995 (File No. 33-5888, incorporated herein by reference). 23.1 Consent of Arthur Andersen LLP. 23.2(1) Consent of Shereff, Friedman, Hoffman & Goodman, LLP (contained in its opinion filed as Exhibit 5.1 to this Registration Statement). 24.1 Power of Attorney (included in Part II of this Registration Statement). - ------------------ (1) Incorporated herein by reference as indicated. (b) FINANCIAL STATEMENT SCHEDULES All schedules have been omitted because the required information is not present or not present in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements including notes thereto. 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 of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (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. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the securities Exchange Act of 1934 (and, where applicable, II-3 26 each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. D. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 27 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Waxman Industries, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-2 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland, State of Ohio on the 10th day of October, 1995. WAXMAN INDUSTRIES, INC. By:/s/ Armond Waxman -------------------------------- Armond Waxman, Co-Chairman of the Board and Co-Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
NAME TITLE DATE /s/ * Co-Chairman of the Board, October 10, 1995 - ------------------------------- Co-Chief Executive Officer Melvin Waxman and Director /s/ * Co-Chairman, Co-Chief Executive October 10, 1995 - ------------------------------- Officer and Director Armond Waxman /s/ William R. Pray President, Chief Operating October 10, 1995 - ------------------------------- Officer and Director William R. Pray /s/ Andrea Luiga Chief Financial Officer October 10, 1995 - ------------------------------- Andrea Luiga /s/ * Director October 10, 1995 - ------------------------------- Samuel J. Krasney /s/ * Director October 10, 1995 - ------------------------------- Irving Z. Friedman /s/ * Director October 10, 1995 - ------------------------------- Judy Robins * By /s/ Armond Waxman ---------------------- Armond Waxman As Attorney-in-Fact
II-5 28 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Armond Waxman, his or her attorney-in-fact and agent, with the power of substitution for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments), to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith with the Securities and Exchange Commission, and hereby ratifying and confirming all that said attorney-in-fact, or their or his or her substitute or substitutes, may do or cause to be done by virtue thereof. /s/ William R. Pray President, Chief Operating October 10, 1995 - ------------------------------------- Officer and Director William Pray /s/ Andrea Luiga Chief Financial Officer October 10, 1995 - ------------------------------- Andrea Luiga
II-6 29 EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT DESCRIPTION SEQUENTIAL PAGE NUMBER - -------------- ------------------- ---------------------- 4.1(1) Indenture, dated as of May 20, 1994, by and between Waxman Industries, Inc. and The Huntington National Bank, as Trustee, with respect to the Deferred Coupon Notes, including the form of Deferred Coupon Notes (Exhibit 4.1 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 4.2(1) Warrant Agreement, dated as of May 20, 1994, by and between Waxman Industries, Inc. and The Huntington National Bank, as Warrant Agent (Exhibit 4.2 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 4.3(1) Warrant Certificate (Exhibit 4.3 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 5.1(1) Opinion of Shereff, Friedman, Hoffman & Goodman, LLP regarding legality (filed as exhibit 5.1 to this Registration Statement). 10.1(1) Lease between Waxman Industries, Inc. as Lessee and Aurora Investment Co. as Lessor dated June 30, 1992 (Exhibit 10.1 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1992, File No. 0-5888, incorporated herein by reference). 10.2(1) Policy Statement (revised as of June 1, 1980) regarding Waxman Industries, Inc.'s Profit Incentive Plan (Exhibit 10(c)-1 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1984, File No. 0-5888, incorporated herein by reference). 10.3(1) Employment Contract dated June 18, 1990 between Barnett Inc. and William
II-7 30
Exhibit Number Exhibit Index Sequential Page Number - -------------- ------------- ---------------------- R. Pray (Exhibit 10.4 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1991, File No. 0-5888, incorporated herein by reference). 10.4(1) Form of Stock Option Agreement between Waxman Industries, Inc. and its Directors (Exhibit 10.5 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1991, File No. 0-5888, incorporated herein by reference). 10.5(1) Employment Contract dated January 1, 1992 between Waxman Industries, Inc. and John S. Peters (Exhibit 10.6 to Waxman Industries, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1992, File No. 0-5888, incorporated herein by reference). 10.6 Employment Agreeement dated November 1, 1994 between Waxman Consumer Products Group Inc. and Laurence Waxman. 10.7(1) Tax Sharing Agreement dated May 20, 1994 among Waxman Industries, Waxman USA, Barnett Inc. , Waxman Consumer Products Group Inc., WOC Inc. and Western American Manufacturing, Inc. (Exhibit 10.6 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.8(1) Intercorporate Agreement dated May 20, 1994 among Waxman Industries, Waxman USA, Barnett Inc., Waxman Consumer Products Group Inc., WOC Inc. and Western American Manufacturing, Inc. (Exhibit 10.7 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference).
II-8 31
Exhibit Number Exhibit Index Sequential Page Number - -------------- ------------- ---------------------- 10.9(1) Credit Agreement dated as of May 20, 1994 among Waxman USA, Inc., Barnett Inc., Waxman Consumer Products Group Inc. and WOC Inc., the Lenders and Issuers party thereto and Citicorp USA, Inc., as Agent, and certain exhibits thereto (Exhibit 10.8 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.10(1) Term Loan Credit Agreement dated as of May 20, 1994 among Waxman USA, Inc., Barnett Inc., Waxman Consumer Products Group, Inc. and WOC Inc., the Lenders and Issuers party thereto and Citibank, N.A., as Agent (Exhibit 10.9 to Waxman Industries, Inc.'s Form S-4 filed June 20, 1994, incorporated herein by reference). 10.11 Amendment No. 2 to the Term Loan Agreement and Amendment No. 1 to the Revolving Credit Agreement among Waxman USA, Inc., Barnett Inc., Waxman Consumer Products Group Inc. and WOC Inc., the Lenders and Issuers party thereto and Citibank, N.A., as Agent. 12.1(1) Statement re: computation of ratios (Exhibit 12.1 to Waxman Industries, Inc.'s Form S-1, filed July 18, 1995, incorporated herein by reference). 13.1(1) Form 10-K Annual Report of Waxman Industries, Inc. for the year ended June 30, 1995, File No. 33-5888 (incorporated herein by reference). 23.1 Consent of Arthur Andersen LLP. 23.2(1) Consent of Shereff, Friedman, Hoffman
II-9 32
Exhibit Number Exhibit Index Sequential Page Number - -------------- ------------- ---------------------- & Goodman, LLP (contained in its opinion filed as Exhibit 5.1 to this Registration Statement). 24.1 Power of Attorney (included in Part II of this Registration Statement).
- ------------------ (1) Incorporated herein by reference as indicated. II-10 EX-10.6 2 EXHIBIT 10.6 1 EMPLOYMENT AGREEMENT THIS AGREEMENT (the "Agreement") is made and entered into as of this 3rd day of February 1995, and effective as of November 1, 1994 (the "Effective Date"), by and between Waxman Consumer Products Group Inc. (the "Company"), and Laurence Waxman ("Executive"). W I T N E S S E T H : WHEREAS, Executive has been employed by the Company, or its predecessor, for more than 15 years, and is currently the President of the Company; WHEREAS, Executive possesses an intimate knowledge of the business and affairs of the Corporation, its policies, records, personnel and business relationships; WHEREAS, the Company desires to continue to employ Executive, and Executive is willing to continue to be employed by the Company upon the terms and subject to the conditions in this Agreement; NOW THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the adequacy and receipt of which are hereby acknowledged, the parties agree as follows: 1. Employment. The Company hereby employs Executive and Executive hereby accepts employment with the Company for the Term (as defined in Section 2 below) of this Agreement, in the position and with the duties and responsibilities set forth in Section 3 below and upon the other terms and subject to the conditions hereinafter stated. 2. Term. The initial term (the "Initial Term") of this Agreement shall commence on the Effective Date and shall continue until the fifth anniversary of the Effective Date (the "Initial Expiration Date"); provided, however, that this Agreement at all times shall be subject to earlier termination in accordance with the provisions hereof. On the Initial Expiration Date and each anniversary of the Initial Expiration Date, the term of this Agreement automatically shall be extended for an additional one year term (the "Extended Term") unless either party hereto shall have provided written notice to the other party hereto of its, or his, intent not to 2 extend this Agreement not less than one year prior to the end-of-the-Initial Term or the Extended Term, as the case may be. For purposes of this Agreement, "Term" means the Initial Term and, if so extended, the Extended Term. 3. Position, Duties and Responsibilities. 3.1 Position, Duties and Responsibilities. During the Term, Executive shall serve as the President of the Company, and shall be responsible for the duties attendant to such office, which duties will be generally consistent with his position as an executive officer of the Company and which will generally utilize his experience with the Company prior to the date hereof, and such other managerial duties and responsibilities with the Company, its affiliates, subsidiaries or divisions as may be assigned by the Board of Directors of the Company (the "Board") and agreed to by Executive. Executive will report directly to the Chairman of the Board and the Board and, while the Company is a subsidiary of Waxman Industries, Inc. ("Waxman"), to the Co-Chairman of the Board and Co-Chief Executive Officers of Waxman. The Company intends that Executive will continue to be elected to and serve as a member of the Board. Executive shall also serve as an officer and/or member of the Board of Directors of any subsidiary or affiliate of the Company, if the Board should so request. Executive's duties shall be performed principally at the Company's executive offices which are located in the Cleveland Metropolitan Area (as defined below), and Executive shall not be required to perform duties which would necessitate changing his present residence, unless Executive otherwise agrees in writing. For purposes of this Agreement, the term "Cleveland Metropolitan Area" shall encompass the City of Cleveland and the territory within fifty miles from that city in any direction. The Company will promptly pay (or reimburse Executive for) all reasonable moving expenses incurred by Executive relating to a change of Executive's residences in connection with any such relocation to which Executive has consented. In connection with any such change of residences, the Company shall, at the request of Executive, purchase from Executive the residence which he is required to vacate; provided, however, that such request must be made within six months of his commencement of full-time employment at the Company's relocated executive offices. The purchase price of such residence shall be the average of the appraisals rendered by two appraisers retained by the Company, one of whom shall be selected by Executive. Executive acknowledges and agrees that, in connection with his employment hereunder, he may be required to travel on behalf of the Company. To the extent that any Executive relocation benefit program maintained by the Company, in which Executive is entitled to participate, is more favorable to Executive than the provisions of this Agreement with respect to relocation, Executive shall be entitled to such additional relocation benefits. 3.2 Services to be Provided. During the Term, Executive shall devote all of his working time, attention and energies to the affairs of the Company and its subsidiaries, affiliates and divisions and use his best efforts in the performance of his duties to promote its and their best interests; provided, however, that nothing herein shall preclude Executive from -2- 3 (i) serving on the boards of directors of a reasonable number of other corporations, trade associations or charitable organizations, (ii) engaging in charitable activities and community affairs or (iii) managing his personal investments and affairs; provided, however, that such activities do not interfere with the performance of Executive's duties under the Agreement. 4. Salary 4.1 Base Salary. During the Term, Executive shall be paid a base salary (the "Base Salary"), payable in equal installments at such intervals as the other executive officers of the Company are paid but not less often than bi-weekly, at an annual rate of two hundred thousand dollars ($200,000) until the first anniversary of the Effective Date. For each succeeding year during the Term, the annual rate of the Base Salary shall be increased by an amount equal to six percent (6%) of the Base Salary in effect for the preceding year. 4.2 Annual Cash Bonus. During the Term, Executive shall participate in any bonus/incentive compensation programs available to senior executive officers of the Company as may be adopted by the Company, including the 1994 Waxman Consumer Products Group Inc. Bonus Program. Executive shall be entitled to receive a bonus pursuant to this Section 4.2 of not less than $50,000 with respect to the Company's fiscal year ending June 30, 1995. 4.3 Equity Opportunity. During the Term, Executive shall be eligible for stock option grants and similar awards under existing plans of the Company (and, if applicable, under existing plans of Waxman), and under any future plans adopted and administered by the Board in which executive officers of the Company are entitled to participate. 5. Employee Benefits. 5.1 Benefit Programs. During the Term, Executive shall participate with other members of senior management of the Company in any pension, profit-sharing, stock option or similar plan or program of the Company now existing or established hereafter for the benefit of its employees or senior executives of the Company or its subsidiaries generally, to the extent that he remains eligible under the general provisions thereof. Executive shall also be entitled to participate in any group insurance, hospitalization, medical, health and accident, disability or similar or nonsimilar plan or program of the Company now existing or established hereafter for the benefit of its employees or senior executives of the Company and its subsidiaries generally, to the extent that he is eligible under the general provisions thereof. 5.2 Automobile. During the Term, the Company shall provide Executive with an automobile (BMW 500 series or comparable automobile), such automobile to be not more than three years old, to be used by him in connection with the Company's business; and -3- 4 shall be responsible for all reasonable costs of repairing, maintaining and insuring such automobile. 5.3 Medical Expense Reimbursement. During the Term, in addition to the benefits to be provided to Executive pursuant to Section 5.5 hereof, Executive shall be entitled to reimbursement for expenses not reimbursed by insurance or otherwise for "medical care" (as such term in defined in Section 213 of the Internal Revenue Code of 1986, as amended) for himself and his immediate family; provided, however, that such reimbursement shall not exceed $5,000 per annum. 5.4 Insurance. During the Term, the Company, at its sole expense, shall purchase and maintain (a) a life insurance policy on the life of Executive in the amount of $100,000, the beneficiary or beneficiaries of which shall be designated by Executive, and (b) a long-term disability insurance policy which shall provide that, upon the occurrence of a "disability" as defined in such disability insurance policy, Executive shall be entitled to long-term disability benefits each year thereafter in an amount equal to the lesser of (x) 70% of Base Salary and (y) $15,000 per month. In addition, the Company shall pay $12,500 per annum with respect to the split-dollar life insurance program of which Executive is the named insured which is in effect on the Effective Date of this Agreement. 5.5 Vacation; Personal Days. During the Term, Executive shall be entitled to four (4) weeks annual vacation with pay during each year of his employment hereunder provided that the vacation days taken do not interfere with the operations of the Company. Such vacation may be taken, in Executive's discretion, at such time or times as are not inconsistent with the reasonable business needs of the Company. Executive shall not be entitled to any additional compensation in the event that Executive, for whatever reason, fails to take such vacation during any year of his employment hereunder; provided however, that Executive shall be entitled to take up to an additional two week vacation with pay during any year if, and to the extent, that Executive did not take such vacation days in the immediately preceding year. Executive shall also be entitled to all paid holidays given by the Company to its executives. Executive shall also be entitled to such additional time off with pay as is necessary for the observance of all religious holidays which are observed by Executive. 5.6 Other Perquisites. During the Term, the Company shall pay the dues, and other membership costs, incurred by Executive for his continuing membership in the Beechmont Country Club. 6. Expenses. The Company shall reimburse Executive upon presentation of appropriate vouchers or receipts and in accordance with the Company's expense reimbursement policies, for all reasonable expenses incurred by Executive in connection with the performance of his duties under this Agreement. -4- 5 7. Consequences of Termination of Employment. 7.1 Death. In the event of the death of Executive during the Term, Executive's employment hereunder shall be terminated as of the date of his death and Executive's designated beneficiary, or, in the absence of such designation, the estate or other legal representative of Executive (collectively, the "Estate"), shall be paid within thirty (30) days of Executive's death, an amount equal to the sum of Executive's unpaid Base Salary through the month in which Executive's death occurred. 7.2 Disability. In the event Executive shall be unable to render the services or perform his duties hereunder by reason of illness, injury or incapacity (whether physical, mental, emotional or psychological) for a period of either (i) one hundred eighty (180) consecutive days or (ii) two hundred seventy (270) days in any consecutive three hundred sixty-five day period (either of such events shall constitute a "Disability" for purposes of this Agreement), the Company shall have the right to terminate this Agreement by giving ten (10) days prior written notice to Executive. If Executive's employment hereunder is so terminated, (i) Executive shall be paid within thirty (30) days of Executive's termination (x) any unpaid Base Salary through the month in which the termination occurred and (y) an amount equal to the product of (1) the bonus, if any, paid to Executive pursuant to Section 4.2 hereof with respect to the fiscal year immediately preceding the year in which Executive's employment is terminated pursuant to this Section 7.2 and (2) a fraction, the numerator of which is the number of days during which the Executive rendered services and performed his duties hereunder during the fiscal year in which his employment hereunder is terminated and the denominator of which is 365 and (ii) the Company shall continue to provide to, or for the benefit of, Executive, during the twelve consecutive months period commencing on the date of termination of Executive's employment hereunder, the benefits provided to Executive pursuant to Sections 5.1, 5.2, 5.3 and 5.4 hereof, to the extent such continued participation is permitted in accordance with the applicable benefit plans. The amount provided for above shall be reduced by any disability benefits received by Executive with respect to the period prior to his termination. Notwithstanding the foregoing provisions of this Section 7.2, Executive shall be entitled to receive the Base Salary from the date his employment hereunder is terminated pursuant to Section 7.2 until the date upon which Executive commences receiving payments of disability benefits under the disability benefit programs maintained by the Company (the "Disability Payment Commencement Date"). Within thirty (30) days of the Disability Payment Commencement Date, Executive shall repay to the Company the full amount of all Base Salary paid to Executive during the period commencing on the date his employment hereunder was terminated pursuant to this Section 7.2 and ending on the Disability Payment Commencement Date. 7.3 Termination of Employment of Executive by the Company for Cause. In the event Executive is terminated for Cause (as defined below), Executive shall be paid his Base Salary and benefits in accordance with the Company's plans through the date of -5- 6 termination. The term "Cause," as used herein, shall mean (a) Executive's willful misconduct or gross neglect in the performance of his duties hereunder which in either case has resulted, or is likely to result, in material economic damage to the Company, (b) the material breach of this Agreement by Executive which has resulted, or is likely to result, in material economic damage to the Company or (c) the conviction of Executive of a felony which constitutes a crime of moral turpitude. For purposes of this Section 7.3(a), no act, or failure to act, on Executive's part, will be considered "willful" unless done or omitted to be done by him not in good faith and without a reasonable belief that his action or omission was in furtherance of the Company's business. Termination of employment of Execution pursuant to this Section 7.3 shall be made by delivery to Executive of a letter from the Board or the Chairman of the Board generally setting forth a description of the particulars of the conduct which provides the basis for a termination of employment of Executive for Cause. Within ten business days of Executive's receipt of such letter, Executive shall be provided an opportunity, together with his counsel, to present and discuss the matter with the Board. Following such preceding, the Board may, by majority vote of the full Board (without counting Executive) terminate the employment of Executive for Cause. 7.4 Termination of Employment by the Company Other than for Cause, Death or Disability. Executive's employment hereunder also may be terminated at the election of the Company other than for Cause, death or Disability; provided, however, in the event Executive's employment is terminated other than for Cause, death or Disability, all of the remaining payments due hereunder would be accelerated and Executive shall be entitled to a lump sum payment in an amount equal to the amount of his full compensation pursuant to Section 4 hereof for a period equal to the remainder of the Term. Such payment shall be made within thirty (30) days of the effective date of the termination of Executive's employment under this Agreement. 7.5 Termination of Employment by Executive for Good Reason. In the event Executive terminates his employment hereunder for Good Reason (as defined below), Executive shall receive in a lump sum payment an amount equal to the sum of (i) his Base Salary, (as such Base Salary would have been adjusted pursuant to Section 4.1 hereof during the remainder of the Term), for a period equal to the greater of (w) the remainder of the Term of this Agreement or (x) two years, and (ii) the product of (y) the average of the bonus compensation paid to Executive with respect to the three years preceding the year in which Executive terminates his employment for a Good Reason, whether or not such years are part of the Term, multiplied by (z) the greater of (A) the number of years (and portions thereof calculated to the nearest tenth) remaining in the term of this Agreement, and (B) two years. The term "Good Reason" for purposes of this Section 7.5 only shall mean (i) the Company shall have materially breached the provisions of this Agreement which breach shall continue for at least 30 days (except that the termination of Executive's employment by -6- 7 the Company pursuant to Sections 7.2, 7.3 or 7.4 shall not be deemed a breach of this Agreement provided that the Company shall otherwise be in compliance with the terms of this Agreement), (ii) the assignment to Executive by the Board and/or Chairman of the Board of duties materially inconsistent with Executive's position (including status, corporate office, title or reporting responsibility), authority, duties or responsibilities as contemplated by Section 3 of this Agreement, or any action by the Board or Chairman of the Board which results in a material diminution of the position, authority, duties or responsibilities of Executive as contemplated by Section 3 of this Agreement or (iii) the Company shall have materially reduced the benefits and/or perquisites provided to Executive pursuant to Section 5.1 hereof, unless all members of senior management of the Company are similarly affected. 7.6 Termination of Employment by Executive Other than for Good Reason. Executive's employment hereunder also may be terminated at the election of Executive other than for Good Reason, in which case Executive shall be limited to the same rights and benefits as provided herein in connection with a termination of this Agreement by the Company for Cause. 7.7 Payments and Benefits. Any payments or benefits payable to Executive hereunder in respect of any year during which Executive is employed by the Company for less than the entire such year, unless otherwise provided in the applicable plan or arrangement or this Agreement, shall be prorated in accordance with the number of days in such year during which he is so employed. 8. Confidential Information. 8.1 Executive hereby acknowledges that, in the course of his employment by the Company, he has had and will have access to secret and confidential information which relates to or affects all aspects of the business and affairs of the Company, its subsidiaries, affiliates or divisions (individually, a "Company Affiliate" and collectively, the "Company Affiliates"), and which are not available to the general public ("Confidential Information"). Without limiting the generality of the foregoing, Confidential Information shall include information relating to inventions (including, without limitation, Inventions), developments, specifications, technical and engineering data, information concerning the filing or pendency of patent applications, business ideas, trade secrets, products under development, production methods and processes, sources of supply, marketing plans, and the names of any customers or prospective customers or of any persons who have or shall have traded or dealt with the Company. Accordingly, Executive agrees that, except as required by the performance of his duties hereunder, he will not, at any time directly or indirectly, disclose or furnish, or negligently permit to be disclosed or furnished, any Confidential Information to any person, firm, corporation or other entity without the express prior written consent of (x) the Company and (y) with respect to Confidential Information relating to Waxman and its affiliates (other than the Company and its subsidiaries), Waxman. -7- 8 8.2 Executive hereby acknowledges and agrees that any and all models, prototypes, notes, memoranda, notebooks, drawings, records, plans, documents or other material in physical form which contain or embody Confidential Information and/or information relating to Inventions and/or information relating to the business and affairs of any Company Affiliate, and/or the substance thereof, whether created or prepared by Executive or by others ("Confidential Materials"), which are in Executive's possession or under his control, are the sole property of the Company. Accordingly , Executive hereby agrees that, upon the termination of his employment with the Company, whether pursuant to this Agreement or otherwise, or at the Company's earlier request, Executive shall return to the Company all Confidential Materials and all copies thereof in his possession or under his control and shall not retain any copies of Confidential Materials. 9. Non-Competition. 9.1 Executive agrees that he shall not, so long as he shall be employed by any Company Affiliate in any capacity (whether pursuant to this Agreement or otherwise) directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control or be employed by or connected in any manner with, any business, firm or corporation which is or may be in competition, directly or indirectly, with the business of any Company Affiliate without the express written consent of (x) the Company and (y) if the activity or proposed activity affects, or may affect, Waxman or any of its affiliates (other than the Company or its subsidiaries), Waxman; provided, however, that if the Company is no longer a subsidiary of Waxman and if, at the time the Company ceases being a subsidiary of Waxman, the Company and/or any entity then affiliated with the Company was in competition, directly or indirectly, with any Company Affiliate (other than the Company and its subsidiaries), then Executive may continue his then current duties with the Company and/or any entity then affiliated with the Company to the extent and only to the extent that such duties do not support or facilitate an increase in the level of competition between the Company and/or any entity then affiliated with the Company, on the one hand, and any Company Affiliate (other than the Company and its subsidiaries), on the other hand, from that which existed at the time the Company ceased being a subsidiary of Waxman. The Company acknowledges that its current business activities do not compete with the current business activities of any other Company Affiliate. 9.2 Executive agrees that for a period commencing on the effective date of the termination of his employment with the Company (for any reason whatsoever) and concluding upon the earlier to occur of (a) twenty four (24) months after such termination date and (b) the date subsequent to such termination date upon which the Company is in material breach of any material provision of this Agreement (provided that Executive notifies the Company in writing of such breach and the Company does not cure such breach within ten (10) days of the receipt of such notice from Executive), Executive shall not directly or indirectly, own, manage, operate, control or participate in the ownership, management, -8- 9 operation or control, or be employed by or connected in any manner with, any business, firm or corporation which is engaged in any business activity competitive, directly or indirectly, with the business of any Company Affiliate as such businesses are constituted on the effective date of the termination of Executive's employment with the Company, including, for these purposes, any business with respect to which, at the termination of his employment, Executive was aware that there was a bona fide intention on the part of any Company Affiliate to engage in the future and with respect to which such Company Affiliate had formulated plans to engage in the future (a "Prospective Business Activity"), without the express prior written consent of (w) the Company and (x) if the activity or proposed activity affects, or may affect, Waxman or any of its affiliates (other than the Company or its subsidiaries), Waxman. For purposes of this Section 9.2, (y) only businesses of a Company Affiliate in which Executive is engaged or with respect to which Executive has access to Confidential Information shall be included within the scope of this Section 9.2 and (z) if any Company Affiliate does not in fact engage in a Prospective Business Activity within one year of the date of the termination of Executive's employment hereunder, then such Company Affiliate shall be deemed not to have had a bona fide intention to engage in such Prospective Business Activity. 9.3 Anything to the contrary herein notwithstanding, the provisions of this Section 9 shall not be deemed violated by the purchase and/or ownership by Executive of shares of any class of equity securities (or options, warrants or rights to acquire such securities, or any securities convertible into such securities) (x) of the Company or Waxman (or any successor thereto), (y) representing (together with any securities which would be acquired upon the exercise of any such options, warrants or rights or upon the conversion of any other security convertible into such securities) five percent (5%) or less of the outstanding shares of any such class of equity securities of any issuer whose securities are traded on a national securities exchange or listed by NASDAQ, the National Quotation Bureau Incorporated or any similar organization; provided, however, that Executive shall not be otherwise connected with or active in the business of the issuers described in this Section 9.3 or (z) of any entity which is then employing Executive. 10. Remedy For Breach. Executive hereby acknowledges that in the event of any breach or threatened breach by him of any of the provisions of Sections 8 or 9 of this Agreement, the Company and the Company Affiliates would have no adequate remedy at law and could suffer substantial and irreparable damage. Accordingly, Executive hereby agrees that, in such event, the Company and the Company Affiliates shall be entitled, and notwithstanding any election by the Company and such Company Affiliates to claim damages, to obtain a temporary and/or permanent injunction (without proving a breach therefor) to restrain any such breach or threatened breach or to obtain specific performance of any such provisions, all without prejudice to any and all other remedies which the Company and the Company Affiliates may have at law or in equity. -9- 10 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered personally or sent by registered or certified mail (return receipt requested), postage prepaid, or by telecopy (immediately followed by telephone confirmation of delivery of such telecopy with the intended recipient of such notice and by notice in writing sent promptly by registered or certified mail as provided above) to the parties to this Agreement at the following addresses or at such other address for a party as shall be specified by like notice: To the Company: Waxman Consumer Products Group Inc. 24455 Aurora Road Bedford Heights, OH 44146 Telephone: (216) 439-1830 Telecopy: Attention: Chairman of the Board With copies to: Scott M. Zimmerman, Esq. Shereff, Friedman, Hoffman & Goodman 919 Third Avenue New York, New York 10022 Telephone: (212) 758-9500 Telecopy: (212) 758-9526 To Waxman: Waxman Industries, Inc. 24460 Aurora Road Bedford Heights, Ohio 44146 Telephone: (216) 439-1830 Telecopy: (216) 439-8678 Attention: President With copies to: Scott M. Zimmerman, Esq. Shereff, Friedman, Hoffman & Goodman 919 Third Avenue New York, New York 10022 Telephone: (212) 758-9500 Telecopy: (212) 758-9526 To Executive: Laurence Waxman 25085 Penhurst Drive Beechwood, Ohio 44122 -10- 11 Telephone: (216) 591-0409 With a Copy to: Marc H. Morgenstern Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. The Tower at Erieview Suite 2600 Cleveland, Ohio 44114-1824 Telephone: (216) 696-3311 Telecopy: (216) 696-1109 All such notices and communications shall be deemed to have been received on the date of personal delivery, on the date that the telecopy is confirmed as having been received or on the third business day after the mailing thereof, as the case may be. 12. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the employment matters contemplated herein and supersedes all prior agreements or understandings among the parties related to such employment matters. 13. Binding Effect: Third Party Beneficiaries. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns and upon Executive. "Successors and assigns" shall mean, in the case of the Company, any successor pursuant to a merger, consolidation, or sale, or other transfer of all or substantially all of the assets of the Company. The parties hereto agree that Waxman and each of its affiliates (other than the Company) are third party beneficiaries of the obligation of Executive contained in Sections 8, 9 and 10, and shall be entitled to enforce the provisions thereof as if each were a party to this Agreement. 14. No Assignment. Except as contemplated by Section 13 above, this Agreement shall not be assignable or otherwise transferable by either party. 15. Amendment or Modification: Waiver. No provision of this Agreement may be amended or waived unless such amendment or waiver is authorized by the Chairman of the Board or the Board and is agreed to in writing, signed by Executive and by an officer of the Company thereunto duly authorized; provided further that Sections 8, 9 and 10 hereof may not be amended or modified except by prior written consent of Waxman. Except as otherwise specifically provided in this Agreement, no waiver by either party hereto of any breach by the other party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar provision or condition at the same or at any prior or subsequent time. -11- 12 16. Fees and Expenses. The Company will reimburse Executive for the reasonable attorney's fees incurred by him in connection with the negotiation and preparation of this Agreement. If either party institutes any action or proceedings to enforce any rights the party has under this Agreement, or for damages by reason of any alleged breach of any provision of this Agreement, or for a declaration of each party's rights or obligations hereunder or to set aside any provision hereof, or for any other arbitral or judicial remedy, each party shall be responsible for its own costs and expenses incurred thereby, including but not limited to, attorneys' fees and disbursements. 17. Governing Law: Arbitration. The validity, interpretation, construction, performance and enforcement of this Agreement shall be governed by the internal laws of the State of Ohio, without regard to its conflicts of law rules. Any controversy or claim arising out of or relating to this Agreement, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon such award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Cleveland or such other place as may be agreed upon at the time by the parties to the arbitration. 18. Titles. Titles to the Sections and subsections in this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the title of any Section. 19. Counterparts. This Agreement may be executed in one or more counterparts, which together shall constitute one agreement. It shall not be necessary for each party to sign each counterpart so long as each party has signed at lease one counterpart. 20. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms and provisions of this Agreement in any other jurisdiction. -12- EX-10.11 3 EXHIBIT 10.11 1 EXHIBIT 4.25 AMENDMENT NO. 2 TO THE TERM LOAN AGREEMENT AND AMENDMENT NO. 1 TO THE REVOLVING CREDIT AGREEMENT Amendment (the "Amendment"), dated as of September __, 1995, among WAXMAN USA INC. (the "Company"), BARNETT INC., WAXMAN CONSUMER PRODUCTS GROUP INC. and WOC INC. (the "Borrowers"), each a Delaware corporation; the financial institutions listed on the signature pages hereof as a "Term Loan Lender" (each individually a "Term Loan Lender" and collectively the "Term Loan Lenders"); the financial institutions listed on the signature pages hereof as a "Revolving Credit Lender" (each individually a "Revolving Credit Lender" and collectively the "Revolving Credit Lenders" and, together with the Term Loan Lenders, the "Lenders"); CITIBANK, N.A. ("Citibank"), as agent for the Term Loan Lenders (in such capacity, the "Term Loan Agent"); and CITICORP USA, INC., as agent for the Revolving Credit Lenders (in such capacity, the "Revolving Credit Agent" and, together with the Term Loan Agent, collectively, the "Agent"). W I T N E S S E T H WHEREAS, the Company, the Borrowers, the Term Loan Lenders and the Term Loan Agent have entered into a TERM LOAN CREDIT AGREEMENT, dated as of May 20, 1994 (as such agreement may be amended, modified, extended or refinanced from time to time) (the "Term Loan Credit Agreement"); WHEREAS, the Company, the Borrowers, the Revolving Credit Lenders and the Revolving Credit Agent have entered into a REVOLVING CREDIT AGREEMENT, dated as of May 20, 1994 (as such agreement may be amended, modified, extended or refinanced from time to time) (the "Revolving Credit Agreement" and, together with the Term Loan Credit Agreement, the "Credit Agreements"); WHEREAS, the Company and the Borrower have requested that the Lenders amend Article V of the Credit Agreements; 2 NOW THEREFORE, in consideration of the premises and the covenants and the agreements contained herein, the parties hereto agree as follows: Section 1. Capitalized Terms. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in the Credit Agreements. Unless otherwise indicated, references herein to an Exhibit, Schedule, Article, Section, subsection or clause refer to the appropriate Exhibit, or Schedule to, or Article, Section or subsection in the Credit Agreements. Section 2. Amendment. On the terms and subject to the conditions set forth herein, the Lenders, at the request of the Company, hereby amend the Credit Agreements as follows: (a) The definition of "Trigger Event" is hereby amended by amending the schedule set forth therein for the following Fiscal Quarters to read as follows: September 30, 1995 1.30 December 31, 1995 1.30 March 31, 1996 1.40 June 30, 1996 1.50 (b) Article V is hereby amended by deleting ARTICLE V and replacing it with the following: "ARTICLE V" FINANCIAL COVENANTS From and after the Closing Date and as long as any of the Obligations or Commitments remain outstanding, unless the Majority Lenders otherwise consent in writing, the Company and each Borrower agree with the Lenders and the Agent that (it being understood that for the period from April 1, 1995 through March 31, 1996, all non- recurring charges or reserves taken by the Company and its Subsidiaries in connection either with the restructuring of Waxman Consumer Products Group, Inc. or the sale of Waxman Consumer Products Group, Inc. should not be included for purposes of determining whether a breach has occurred pursuant to this Article V; it being further under- stood that this shall not be deemed a consent to any such sale or restructuring): 2 3 5.1. MAXIMUM LEVERAGE RATIO. The Company shall maintain at the end of each Fiscal Quarter set forth below on a consolidated basis, a ratio of (a) Total Liabilities to (b) EBITDA for the 12 months then ending (or in the case of the Fiscal Quarter ending June 30, 1994, the product of four and EBITDA for the three months then ending or in the case of the Fiscal Quarter ending September 30, 1994, the product of two and EBITDA for the six months then ending or, in the case of the Fiscal Quarter ending December 31, 1994, the product of 1.333 and EBITDA for the nine months then ending) not in excess of the ratio set forth below opposite such Fiscal Quarter.
For the Fiscal Quarter Ending on Maximum Ratio - ------------------------ ------------- June 30, 1994 7.0 September 30, 1994 7.0 December 31, 1994 7.0 March 31, 1995 7.0 June 30, 1995 6.5 September 30, 1995 6.0 December 31, 1995 6.0 March 31, 1996 5.6 June 30, 1996 and thereafter 5.6
5.2 FIXED CHARGE COVERAGE RATIO. The Company shall maintain at the end of each Fiscal Quarter set forth below, a ratio of (a) EBITDA less Capital Expenditures (other than in respect of Capitalized Leases) less income taxes paid to (b) Fixed Charges, in each case determined on the basis of the four Fiscal Quarters ending on the date of determination (except that (i) in the case of the Fiscal Quarter ending June 30, 1994, such determination shall be made based on the three months then ending, (ii) in the case of the Fiscal Quarter ending September 30, 1994, such determination shall be made based on the six months then ending, and (iii) in the case of the Fiscal Quarter ending December 31, 1994, such determination shall be based on the nine months then ending), not less than the ratio set forth below opposite such Fiscal Quarter: 3 4
For the Fiscal Quarter Ending on Minimum Ratio - ------------------------ ------------- June 30, 1994 1.05 September 30, 1994 1.10 December 31, 1994 1.10 March 31, 1995 1.05 June 30, 1995 1.05 September 30, 1995 0.95 December 31, 1995 0.90 March 31, 1996 0.95 June 30, 1996 1.00 September 30, 1996 1.00 December 31, 1996 1.00 March 31, 1997 1.00 June 30, 1997 and thereafter 1.30
5.3 MAINTENANCE OF ADJUSTED NET WORTH. The Company shall maintain at the end of each month set forth below an Adjusted Net Worth of not less than the minimum amount set forth below for such month (it being understood that (13,000,000) is less than (11,000,000)):
For each Minimum Adjusted Fiscal Quarter Ending on Net Worth - ------------------------ ---------------- June 30, 1994 $20,000,000 September 30, 1994 20,600,000 December 31, 1994 21,250,000 March 31, 1995 22,000,000 June 30, 1995 33,000,000 September 30, 1995 36,000,000 December 31, 1995 41,500,000 March 31, 1996 46,500,000 June 30, 1996 and thereafter 52,000,000
5.4 CAPITAL EXPENDITURES. The Borrowers shall not permit any Capital Expenditures the result of which is that the Capital Expenditures for the period from December 31, 1993 until such date is in excess of the maximum amount set forth below for such Fiscal Quarter in which such date falls: 4 5
Maximum Amount of Fiscal Quarter Ending on Capital Expenditures - ------------------------ -------------------- June 30, 1994 $1,750,000 September 30, 1994 2,750,000 December 31, 1994 3,750,000 March 31, 1995 4,750,000 June 30, 1995 5,600,000 September 30, 1995 6,200,000 December 31, 1995 7,500,000 March 31, 1996 8,200,000 June 30, 1996 9,000,000 September 30, 1996 9,200,000 December 31, 1996 9,400,000 March 31, 1997 10,000,000 June 30, 1997 10,600,000 September 30, 1997 11,200,000 December 31, 1997 11,800,000 March 31, 1998 12,500,000
5.5. EBITDA to Total Cash Interest Ratio. The Company shall maintain at the end of each Fiscal Quarter set forth below a ratio of EBITDA to Cash Interest Expense, in each case determined based on the four Fiscal Quarters ending on the date of determination (except that (i) in the case of the Fiscal Quarter ending June 30, 1994, such determination shall be made based on the three months then ending, (ii) in the case of the Fiscal Quarter ending September 30, 1994, such determination shall be made based on the six months then ending, and (iii) in the case of the Fiscal Quarter ending December 31, 1994, such determination shall be based on the nine months then ending) of not less than the ratio set forth below for such Fiscal Quarter: 5 6
For each Fiscal Quarter Ending on Minimum Ratio - ------------------------ ------------- June 30, 1994 1.25 September 30, 1994 1.30 December 31, 1994 1.30 March 31, 1995 1.35 June 30, 1995 1.35 September 30, 1995 1.29 December 31, 1995 1.29 March 31, 1996 1.35 June 30, 1996 1.45 September 30, 1996 1.45 December 31, 1996 1.45 March 31, 1997 1.50 June 30, 1997 1.50 September 30, 1997 1.75 December 31, 1997 1.75 March 31, 1998 1.75
Section 3. CONDITIONS PRECEDENT TO EFFECTIVENESS. 3.1. CONDITIONS PRECEDENT. This Amendment shall become effective on the date (the "Effective Date") upon which the agent shall have received executed counterparts of this Amendment from the Majority Lenders (as defined under the Term Loan Credit Agreement) and the Majority Lenders (as defined under the Revolving Credit Agreement). Section 4. MISCELLANEOUS. 4.1 REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Except for the amendments specified above, the Credit Agreements, the Collateral Documents (as defined in each of the Credit Agreements) and each other Loan Document (as defined in each of the Credit Agreements) shall remain and continue to be in full force and effect in accordance with their respective terms, and the Credit Agreement and each Collateral Document is hereby ratified, confirmed and acknowledged by each party thereto. (b) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as an amendment or waiver of any right, power or remedy of any Borrower, Lender, Agent or the Company under the Credit Agreements or the Loan Documents nor constitute an amendment or waiver of any provision of 6 7 any of the Collateral Documents or any of the other Loan Documents. 4.2 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 4.3 Section Titles. The section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto. 4.4 Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written. WAXMAN USA INC. By:___________________________________ Title: Borrowers BARNETT INC. By:___________________________________ Title: WOC INC. By:__________________________________ Title: WAXMAN CONSUMER PRODUCTS GROUP INC. 7 8 By:__________________________________ Title: 8 9 Agent CITIBANK, N.A. as Term Loan Agent By:_______________________________ Title: Vice-President CITIBANK, N.A. as Revolving Credit Agent By:_______________________________ Title: Vice-President Lenders CITIBANK, N.A., as Term Loan Lender By:________________________________ Title: Vice-President CITICORP USA, INC., as Revolving Credit Lender By:________________________________ Title: Vice-President HELLER FINANCIAL, INC., as Term Loan Lender and Revolving Credit Lender By:________________________________ Title: 9 10 SANWA BUSINESS CREDIT CORPORATION, as Revolving Credit Lender By:_______________________________ Title: 10 EX-23.1 4 EXHIBIT 23.1 1 Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated September 26, 1995 included in Waxman Industries, Inc.'s Form 10-K for the year ended June 30, 1995 and to all references to our Firm included in this Registration Statement (File No. 33-54211). Cleveland, Ohio, October 9, 1995. -----END PRIVACY-ENHANCED MESSAGE-----